P. v. McDowell

Filed 8/30/06 P. v. McDowell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant, James Alvin McDowell, pled no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted four prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). On October 17, 2005, the court struck two enhancements and sentenced McDowell to a four-year term, the middle term of two years on the possession offense and 2 one-year prior prison term enhancements.

McDowell's appellate counsel has filed a brief which 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, through his appellate counsel McDowell asks us to address the following issues: 1) Did the court abuse its discretion by its failure to place appellant on Proposition 36 probation? 2) Did the court abuse its discretion by its failure to issue a certificate of probable cause? 3) Did the court abuse its discretion when it failed to impose the mitigated term?

People v. Dove (2004) 124 Cal.App.4th 1, is dispositive of the first issue. In Dove, the defendant was convicted of transportation of cocaine base and possession of cocaine base, a lesser included offense of the charged possession for sale of cocaine base. The trial court, however, denied appellant Proposition 36 probation finding that he possessed and transported the cocaine base for other than personal use. In upholding the denial, the Dove court stated, â€