P. v. Lampkin

Filed 3/2/07 P. v. Lampkin CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura P. Hammes, and David J. Danielsen, Judges. Affirmed.

In superior court case No. SCD152218, Ertis George Lampkin, Jr., entered a negotiated guilty plea to possessing marijuana for sale. (Health & Saf. Code,  11359.)^[1] On January 5, 2001, the court suspended imposition of sentence and placed him on three years' probation including a condition he obey all laws. On December 18, 2003, the court summarily revoked probation and issued a bench warrant after the probation department reported that Lampkin failed to remain law abiding. On April 4, 2006, the court formally revoked probation, and it sentenced Lampkin to prison for the two-year middle term for possessing marijuana for sale concurrent with a sentence in case No. SCD177199.

In superior court case No. SCD177199, Lampkin entered a negotiated guilty plea to transporting more than 28.5 grams of marijuana. ( 11360, subd. (a).) On June 16, 2004, the court suspended imposition of sentence and placed him on three years' probation including a condition he obey all laws. On April 4, 2006, the court formally revoked probation, and it sentenced Lampkin to prison for the three-year middle term for transporting marijuana.

The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

FACTS

Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. In superior court case No. SCD152218, on April 6, 2000, officers from the San Diego Regional Violent Crime Task Force searched Lampkin's car, which was parked outside an apartment that had been targeted for drug trafficking. In the car, officers found over a pound of marijuana and an electronic scale. In superior court case No. SCD177199, on September 2, 2003, San Diego police officers stopped a car Lampkin was driving. In the car the officers found a backpack containing 835 grams of marijuana. In superior court case No. SCD194580, on April 4, 2006, the court held a preliminary hearing on new charges Lampkin possessed a firearm and ammunition, and it held an evidentiary hearing on probation revocation in case Nos. SCD152218 and SCD177199. At the hearing, the People presented evidence that on October 26, 2005, San Diego Police Detective Scott Barnes stopped Lampkin while Lampkin was driving on Interstate 805. Upon searching the car, Detective Barnes found a loaded nine millimeter handgun in front of the passenger's seat underneath the glove compartment. A female was seated in the passenger seat. The female told Officer Spear that she had been dating Lampkin for five months and he always drove the car they were in when they went out. Lampkin's female passenger said she had no knowledge of the gun found in the car. Officer Sullivan found receipts in the car containing Lampkin's name. San Diego Police Detective DuBois spoke with the registered owner of the car, La Donica Whyte. Ms. Whyte told Detective DuBois that the car was registered to her but it had not been in her possession for approximately two years. She had been Lampkin's girlfriend until they separated two years earlier. Ms. Whyte said Lampkin was the primary owner of the car and for all intents and purposes it was not her car and she left no property in the car. At the hearing, the court found probable cause to hold Lampkin on the firearm and ammunition charges and formally revoked probation. At the People's request, the court dismissed the firearm and ammunition charges in case No. SCD194580, in light of the sentences in case Nos. SCD152218 and SCD177199. Because Lampkin entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code,  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.

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 utilizing the preliminary hearing in case No. SCD194580 as an evidentiary hearing in the probation revocation case Nos. SCD152518 and SCD177199; and (2) whether sufficient evidence supports the revocations of probation.

We granted Lampkin permission to file a brief on his own behalf. He has not responded. While reviewing the record pursuant to People v. Wende, supra, 25 Cal.3d 436, we requested additional briefing on the issue of whether the three-year term of probation in case No. SCD152218 expired before revocation. The record before this court had no court order or minute order summarily revoking probation within the three-year term of probation. The clerk's transcript has since been supplemented to include a court order dated December 18, 2003, summarily revoking probation.

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 Lampkin on this appeal.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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^[1] All statutory references are to the Health and Safety Code unless otherwise indicated.