P. v. Diaz

Filed 6/1/07 P. v. Diaz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

On September 3, 2004, appellant, Juan Carlos Diaz, was a passenger in a car that was stopped by a highway patrol officer in Merced County. During the stop, Diaz admitted smoking marijuana in the car a short time earlier. An ensuing search of Diaz uncovered a plastic bag containing a small amount of methamphetamine. Diaz was arrested for transportation of methamphetamine (case No. 29931) and on an outstanding misdemeanor warrant.

On September 9, 2004, Diaz was released with time served on the misdemeanor case underlying the warrant and on his own recognizance in the new drug offense.

On January 11, 2005, a bench warrant issued for Diazs arrest after he failed to appear at a court hearing on that date (case No. 29332).

On August 20, 2005, Merced County probation officers conducting a probation compliance search at a residence in Atwater found Diaz in a bedroom with 16.9 grams of marijuana in plain view. A further search of the bedroom uncovered 21.5 grams of marijuana in a plastic container, a large Ziplock bag containing a total of 43.4 grams of methamphetamine in three separate packages, a total of 60 grams of psilocybin mushrooms in two separate packages, and a total of 18.7 grams of marijuana in four plastic baggies (case No. 29930).

On January 30, 2006, a preliminary hearing was conducted in all three cases.

On February 14, 2006, the district attorney filed a separate information in each case. The information in case No. 29930 charged Diaz with one count each of possession of methamphetamine for sale (count 1/Health & Saf. Code, 11378), possession of psilocybin (count 2/Health & Saf. Code, 11378), possession of marijuana for sale (count 3/Health & Saf. Code, 11359) and falsely identifying himself to a peace officer (Pen. Code, 148.9, subd. (a)). Counts 1 through 3 also alleged an on bail enhancement (Pen. Code, 12022.1, subd. (b)). The information in case No. 29931 charged Diaz with one count of transportation of methamphetamine (Health & Saf. Code, 11379). The information in case No. 29932 charged Diaz with one count of failing to appear (Pen. Code, 1320, subd. (b)).

On March 24, 2006, the trial court granted the prosecutions motion to consolidate the three cases.

On August 9, 2006, Diaz entered a plea in all three cases. In case No. 29930 Diaz pled no contest to possession of methamphetamine, a reduced charge of the possession for sale of methamphetamine offense charged in that case, and providing false information to a peace officer. In case No. 29931 Diaz pled no contest to transportation of methamphetamine. In case No. 29932 he pled no contest to felony failure to appear.

On September 13, 2006, the trial court sentenced Diaz to an aggregate term of three years eight months as follows: the middle term of three years on his transportation of methamphetamine offense in case No. 29931, a consecutive eight-month term (one- third the middle term of two years) on his possession offense in case No. 29930, and a concurrent two-year term on his failure to appear offense in case No. 29932. The trial court also ordered Diaz to pay three restitution fines totaling $1,000 and three parole revocation fines totaling $1,000.

Diazs appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed February 7, 2007, Diaz complains that at a hearing in late March 2006 or early April 2006, at which he was not present, his defense counsel waived time without obtaining Diazs consent.

           Penal Code section 1237.5 provides:

            No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:

(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.

(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

Diaz did not comply with either subdivision of the above section.  His failure to do so precludes him from complaining on appeal regarding his defense counsels alleged waiver of time without Diazs consent

Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Gomes, J. and Kane, J.