P. v. McDonough

Filed 5/23/06 P. v. McDonough CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Myles Damien McDonough appeals from an order revoking his probation and sentencing him to two years eight months in prison. 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 identifies the following arguable issue: Whether the trial court abused its discretion in sentencing defendant to prison rather than continuing him on probation or in a drug treatment program under Penal Code section 1210. Having reviewed the entire record, we conclude that there is no reasonably arguable appellate issue which requires further briefing, and shall affirm.

Factual and Procedural History

In October 2004, defendant pled guilty to one count of felony possession of methamphetamine. (Health & Saf. Code,[1] § 11377, subd. (a).) He was placed on probation and ordered to enter a drug treatment program. Defendant was remanded into custody in February 2005, after failing twice to complete the required intake assessment for entry into the program. In April 2005, he was released and probation was reinstated, again with the condition that he enter a drug treatment program. In June 2005, the district attorney filed a second felony complaint charging defendant with transportation of methamphetamine (§ 11379, subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), and possession of drug paraphernalia (§ 11364). Defendant pled guilty to the possession charges. He was once again placed on probation and ordered to enter a drug treatment program. In August 2005, the court summarily revoked defendant's probation in both cases based on the probation department's allegation that he failed to appear at his intake assessment appointment and had incurred a new arrest in Marin County. Defendant admitted violating his probation in both cases and was sentenced to the midterm of two years for the possession charge in the first case and a consecutive eight months for the same violation in the second case. Defendant was awarded 186 actual days' credit, plus 92 conduct credits in the first case and given no credit under the second case. Defendant filed a timely notice of appeal but did not request a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)[2]

Discussion

The trial court did not abuse its discretion in sentencing defendant to prison. After citing defendant's criminal history of almost 15 years, the court explained: â€