P. v. Conk

Filed 9/25/07 P. v. Conk CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Randy Conk appeals from a judgment and sentence after revocation of his probation and imposition of sentence. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

BACKGROUND

On April 5, 2006, defendant pleaded guilty to one count of possession of a controlled substance, heroin, for sale, in violation of Health and Safety Code section 11351. Pursuant to an agreed disposition, the court suspended imposition of sentence and placed defendant on three years of supervised probation.

Defendant twice admitted violating probation in 2006. On both occasions the court imposed additional county jail time and continued defendant on probation. The People filed a third motion to revoke probation on March 9, 2007, after defendant was again arrested for possession of heroin for sale.

A contested revocation of probation hearing was held on May 18, 2007. The court found defendant in violation of probation, ordered probation revoked and imposed the three-year midterm sentence on the original possession for sale offense. Defendant was ordered to pay $200 to the victims indemnity fund and a $200 parole fine to be stayed upon successful completion of parole. Defendant received credits for 209 days actually served and 104 days conduct credits, for a total of 313 days presentence credits. He filed a timely notice of appeal.

DISCUSSION

Defendants counsel has represented that she informed defendant a Wende brief would be filed in this case and advised him of his right to submit a supplemental brief on his own behalf. This court has reviewed a supplemental letter brief from defendant, in which he maintains the midterm sentence for his offense is two years. He is mistaken; Health and Safety Code section 11351 clearly states that the midterm for a violation is three years and the record reflects that defendant was so advised on April 5, 2006, when he entered his guilty plea. We find no arguable issues on appeal. There are no legal issues that require further briefing.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Horner, J.^*

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^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.