P. v. Hale
Filed 10/10/07 P. v. Hale CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. HERBERT HALE, Defendant and Appellant. | C055306 (Super. Ct. No. 06F10698) |
Defendant Herbert Hale pleaded no contest to sale of a controlled substance (Health & Saf. Code, 11352, subd. (a)--count one)[1]and possession for sale of a controlled substance ( 11351--count two) and admitted an enhancement for a previous conviction of a specified controlled substance offense ( 11370.2, subd. (a)). The charges were based on an incident in which defendant sold heroin to an undercover police officer and was in possession of 10 individually wrapped pieces of heroin. Defendant had a previous conviction for possession for sale of a controlled substance in 1995. In exchange for defendants plea, the remaining enhancements were dismissed and it was agreed that defendant would be sentenced to state prison for a term of seven years. The trial court sentenced defendant forthwith in accord with the agreement.
Defendant appealed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We note one error. In sentencing defendant, the trial court imposed a middle term of four years on count one (which charged sale of a controlled substance), a three-year consecutive term for the prior controlled substance conviction, and a concurrent middle term of four years for count two, which charged possession for sale of a controlled substance. Likewise, the abstract of judgment reflects that defendant was sentenced to a middle term of four years on count two. However, the middle term for a violation of section 11351 is three years, not four years.
Defendants appellate attorney has corresponded with the trial court regarding this error but we have not received any notification that the trial court has responded. Accordingly, we shall correct the judgment to reflect a concurrent three-year term on count two, which is the middle term for a violation of section 11351. Defendants sentence of four years on count one with a consecutive term of three years for the enhancement under section 11370.2 remains unchanged.
We have undertaken an independent examination of the entire record and have found no other arguable errors that would result in a disposition more favorable to defendant.
Disposition
The judgment on count two is modified to three years, and with this modification the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
DAVIS , Acting P.J.
We concur:
RAYE , J.
BUTZ , J.
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[1] Hereafter, undesignated section references are to the Health and Safety Code.
