P. v. Hall

Filed 4/6/07 P. v. Hall CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Rickie G. Hall (Hall) appeals from a sentence imposed after a probation revocation hearing. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, in order to determine whether there is any arguable issue on appeal. Hall has submitted supplemental argument as well. We find no arguable issue and affirm.

I. PROCEDURAL HISTORY

A complaint filed on October 20, 2005, charged Hall with felony possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) and misdemeanor possession of a smoking device (Health & Saf. Code,  11364). It was also alleged that Hall had suffered six prior felony convictions that resulted in prison terms within the meaning of Penal Code section 667.5, subdivision (b).

The events underlying the charges were later described in a report from the Solano County probation office. Hall was stopped by police officers on October 18, 2005, after they saw him riding his bicycle on the wrong side of the street. A search of Halls person revealed a glass smoking pipe and a small plastic baggie of what officers estimated to be 0.40 grams of methamphetamine. No further details of the stop or search are mentioned in the report.

On October 31, 2005, Hall entered a plea of no contest to felony possession of methamphetamine and admitted four of the six prison priors. Paragraph No. 10 of his plea form provided, inter alia, that Halls plea was contingent on receipt of positive toxicology report [within] 5 days. In accord with the terms of his plea agreement, Hall was placed on Proposition 36 probation. (Pen. Code, 1210 et seq.)

Hall started to participate in a residential drug treatment program, but was terminated from the program for rule violations. On March 10, 2006, he admitted that his failure to complete the program constituted a violation of the terms of his probation. Probation was revoked and a bench warrant was issued on April 7, 2006, after he failed to appear for a Proposition 36 progress report. Hall was found ineligible for further Proposition 36 probation on May 12, 2006, and his case was continued for sentencing.

On June 8, 2006, the toxicology report that was supposed to have been provided by November 5, 2005, was delivered to Halls defense attorney after the defense pointed out the lack of compliance. The report indicated that the substance seized from Hall was 0.07 grams of methamphetamine.

On July 5, 2006, Halls attorney asked the trial court to permit Hall to withdraw his October 2005 no contest plea, because Hall had not been notified of the laboratory test results within five days of the date of the plea as provided by the terms of the plea agreement. The defense further argued that 0.07 grams of methamphetamine was not a usable amount of methamphetamine and could not support his conviction. In support of this argument, the defense attached a toxicology report from another case, not involving Hall or methamphetamine, which indicated that 0.08 grams of cocaine was not a usable amount.

The trial court denied Halls request to withdraw his plea and sentenced him to six years in state prison, comprised of the mid-term of two years for felony possession of methamphetamine, plus one year for each of the four prior prison terms Hall had admitted. Hall was awarded 214 days of pretrial confinement credit. A $200 fine and a suspended fine of $200 were also imposed. (Pen. Code,  1202.4, subd. (b), 1202.45.)

This appeal followed.

II. DISCUSSION

Appellants counsel represented in his opening brief that he was serving Hall with the opening brief and had advised Hall in writing of his right to submit supplemental written argument on his own behalf within 30 days. This court received supplemental written argument from Hall on March 19, 2007. Although his submission is untimely, we consider his arguments. (See People v. Kelly (2006) 40 Cal.4th 106 [requiring reviewing court to address supplemental arguments raised by defendant].)

Hall contends that the imposition of the four one-year sentence enhancements, which were based on his four prior prison terms, violated Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856 (Cunningham), double jeopardized him, and violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Hall is incorrect. Under Cunningham, the imposition of the upper term from a statutory range of sentence is unconstitutional if based on facts neither admitted by the defendant nor found true by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at pp. 860, 871.) Here, Hall received the mid-term, not the upper term, for his violation of Health and Safety Code section 11377, subdivision (a). Furthermore, the sentence enhancement was based on prior prison terms that Hall had admitted.

Nor was Hall placed twice in jeopardy for the same offense. The four-year enhancement was imposed as part of his sentence for violating Health and Safety Code section 11377, subdivision (a), not as punishment for a prior offense. Halls sentence did not violate his Fifth, Sixth, or Fourteenth Amendment rights.

We find no arguable issues on appeal. There are no legal issues that require further briefing.^[1]

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] Hall has also filed a petition for writ of habeas corpus (A116101), which we deny by separate order.