P. v. Henley
Filed 8/25/06 P. v. Henley CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. CORY L. HENLEY, Defendant and Appellant. | D048083 (Super. Ct. No. SCD194681) |
APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed.
After the trial court denied a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), a jury convicted Cory L. Henley of transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)). In a bifurcated hearing, the jury found that he had four prior felony convictions (Pen. Code, § 1203, subd. (e)(4)): two convictions for possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), a conviction for robbery (Pen. Code, §§ 211, 667, subds. (b)-(i), 1170.12, 668), and a conviction for transporting a controlled substance (Health & Saf. Code, § 11370.2, subd. (a)); and had served three prior prison terms (Pen. Code, §§ 667.5 subd. (b), 668). The court sentenced him to prison for 13 years: double the four-year middle term for transporting a controlled substance with a prior "strike," enhanced three years for the prior conviction of transporting a controlled substance, and two 1-year terms for prior prison terms. It struck the third prior prison term enhancement and stayed sentence for possessing a controlled substance (Pen. Code, § 654).
FACTS
On October 30, 2005, San Diego Police Officer Matthew Botkin responded to a report of possible drug and alcohol use and indecent exposure in the area of 19th Avenue and J Street. Officer Botkin stopped a Cadillac traveling westbound on J Street in which Henley was a passenger in the rear seat. When Henley got out of the car, Botkin saw a small white rock of cocaine drop to the ground from Henley's lap. Botkin handcuffed Henley and placed him in the patrol car. Botkin searched the area where Henley had been seated and, between the seat and the door, he found 15 pieces of rock cocaine wrapped in brown paper.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable issues: (1) whether the trial court erred in denying the Marsden motion; (2) whether Henley was entitled to Proposition 36 treatment; (3) whether there is sufficient evidence to support the conviction of transporting a controlled substance; (4) whether the trial court erred in admitting testimony based on hearsay; (5) whether the trial court abused its discretion in denying probation; (6) whether the trial court abused its discretion in imposing the middle term; (7) whether the trial court abused its discretion in not dismissing the strike prior; and (8) whether the sentence violates the Eighth and Fourteenth Amendments' ban of cruel and unusual punishment.
We granted Henley permission to file a brief on his own behalf. He has not responded.
We requested additional briefing on the question of whether the trial court erred in failing to obtain a transcript of a Marsden hearing. The record before this court contained the transcript of a Marsden hearing held on November 16, 2005, but erroneously reflected that another Marsden hearing was held on November 15, 2005. The record did not include a transcript of that hearing. Henley's appellate counsel has advised this court that the record notation that a Marsden hearing was held on November 15 is erroneous, that only one Marsden hearing was conducted, and that a transcript of that hearing is contained in the record.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Henley on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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