P. v. Gathrite
Filed 4/24/07 P. v. Gathrite CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO GATHRITE, Defendant and Appellant. | B194006 (Los Angeles County Super. Ct. No. NA059073) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Bradford L. Andrews, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Orlando Fidel Gathrite (Gathrite) appeals the judgment (order revoking probation) entered following his plea of no contest to possession for sale of cocaine base (Health & Saf. Code, 11351.5). The trial court sentenced Gathrite to the low term of three years in state prison. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts[1]
Police officers received a telephone call indicating Gathrite had been observed hiding drugs under a metal chair on which he was sitting and had hidden a firearm in nearby bushes. When officers went to investigate, they turned over Gathrites chair and found a hide-a-key box containing rock cocaine. One officer observed a newspaper wrapped in plastic on the ground approximately three feet from the chair. Inside the wrapped paper, the officer discovered a small .32 caliber revolver loaded with five rounds of ammunition. Gathrite was taken into custody. During an inventory search, an officer found $784 in Guthrites pants pockets.
2. Procedural History
In a felony complaint filed on November 3, 2003, Gathrite was charged with being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), possessing cocaine base for sale (Health & Saf. Code, 11351.5) and possessing a controlled substance while armed with a firearm (Health & Saf. Code, 11370.1, subd. (a)).
On November 10, 2003, after being advised of his right to a preliminary hearing, to confront the witnesses against him, to subpoena witnesses and evidence in his defense, to have a court or jury trial, and his right against self-incrimination, Gathrite pleaded no contest to possession for sale of cocaine base as alleged in count two of the complaint. The trial court informed Gathrite that his maximum potential sentence was five years, eight months in state prison and, should he fail to return to court for sentencing on December 9, 2003, his plea would be considered an open plea and he would be sentenced to such a term. However, if Gathrite returned for sentencing as ordered, he would, in exchange for his plea of no contest to count two, be placed on three years felony probation.
Gathrite appeared at the hearing held on December 9, 2003. At those proceedings the trial court suspended imposition of sentence and granted Gathrite three years formal probation. The trial court then dismissed counts one and three pursuant to plea negotiation[s].
Following a new arrest, the trial court revoked Gathrites probation at proceedings held on June 7, 2004. At a hearing held on June 29, 2004, the trial court reinstated Gathrites probation under the same terms and conditions as previously ordered, with the added conditions that he serve 90 days in county jail, enroll in a drug counseling program and make certain payments as directed by his probation officer.
Gathrites probation was again revoked at proceedings held on March 4, 2005. The trial court reinstated probation on the same terms and conditions as previously ordered, with the added condition that Gathrite complete 30 days of [a] PAAWS [program] . . . . The trial court then admonished Gathrite, stating that any further violation of probation would result in a state prison sentence.
At proceedings held on June 30, 2005, the trial court noted Gathrite had not done the [30] days PAAWS, had failed to pay restitution, had a dirty test for drug use and had failed to appear for subsequent drug testing. After defense counsel indicated Gathrite was stipulating to the probation violations, the trial court revoked, then reinstated probation under the same terms and conditions as previously ordered. The trial court, however, extended the term of Gathrites probation to November 9, 2007 and directed Gathrite to complete a PAAWS program.
At a probation violation hearing held on August 29, 2006, Deputy Probation Officer Geoff Keches testified he had been supervising Gathrites probation for the previous five and one-half months. When asked how Gathrite had been performing on probation, Keches indicated Gathrite had test[ed] positive for marijuana on five different occasions, had failed to provide a DNA sample, had failed to complete a drug program, had failed to participate in a PAAWS program and had failed to pay the restitution ordered as a condition of his probation. Based on the probation officers testimony, the trial court found Gathrite to be in violation of probation, revoked Gathrites probation and sentenced him to the low term of three years in prison for his conviction of possession of cocaine base for sale in violation of Health and Safety Code section 11351.5.[2] Gathrite was given presentence custody credit for a total of 137 days consisting of 105 days previously served, 22 days actual custody, and 10 days of good time/work time.
Gathrite filed a timely notice of appeal on September 13, 2006.
This court appointed counsel to represent Gathrite on appeal on November 28, 2006.
CONTENTIONS
After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed March 7, 2007, the clerk of this court advised Gathrite to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Gathrites counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment (order revoking probation) is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, Acting P. J.
We concur:
KITCHING, J.
ALDRICH, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
[1] The facts have been taken from the probation report.
[2] The abstract of judgment indicates Gathrite was sentenced to the upper term of three years in state prison. Three years in state prison is actually the low term for a violation of Health and Safety Code section 11351.5. Accordingly, [i]n order to avoid confusing the Department of Corrections, on December 22, 2006, counsel for Gathrite made a motion in the trial court for correction of the abstract of judgment in this regard.
