P. v. Parker

Filed 6/29/06 P. v. Parker CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

I.

Introduction

Appellant Rork Donnell Parker (appellant) appeals from a sentence of three years in state prison following his guilty plea to one count of transportation or sale of methamphetamine (Health & Saf. Code, § 11379), and one count of receiving stolen property (Pen. Code, § 496, subd. (a)). Appellant claims on appeal that: (1) the sentence was an abuse of discretion and violated his right to due process; (2) the sentence violated his cooperation agreement with law enforcement and the prosecutor; and (3) the trial court failed to consider his cooperation with law enforcement as a mitigating circumstance at sentencing.

We find no error[1] and affirm the judgment.

II.

Procedural and Factual Backgrounds

A criminal complaint was filed (Case No. CRF 05-9378) by the Del Norte County District Attorney on May 9, 2005, charging appellant with receiving stolen property (Pen. Code, § 496, subd. (a)), second degree burglary (Pen. Code, § 459), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364). Appellant entered a plea of not guilty to the charges at his arraignment on May 10.[2]

On June 2, another complaint (Case No. CRF 05-9460) was filed charging appellant with felony transportation or sale of methamphetamine (Health & Saf. Code, § 11379), and one count of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), which offenses allegedly occurred on May 3. Appellant, who was out of custody at the time of his arraignment on June 3, failed to appear as agreed at the time of his arrest, and a bench warrant was issued. Arraignment was held on June 9, at which time appellant, who was now in custody, pleaded not guilty to the charges.

On June 23, a plea disposition was placed on the record pertaining to both cases, and a third pending, but unfiled, case. As is more fully discussed below, as part of the plea disposition appellant pled guilty to one count of transportation or sale of methamphetamine (Health & Saf. Code. § 11379) in Case No. 05-9460, and one count of receiving stolen property (Pen. Code, § 496, subd. (a)) in Case No. 05-9378. The balance of the pending charges was dismissed by the prosecutor. It was also agreed that appellant would be placed on probation if he appeared for sentencing, and if not, he would receive a state prison sentence. Sentencing was set for July 21, and appellant was released on his own recognizance (OR).

Appellant failed to appear for sentencing on July 21, and the court issued a bench warrant. Appellant was subsequently arrested, and was in custody at the time of sentencing, which had been continued from July 21 to August 4. At the request of defense counsel, sentencing was continued once again until August 11.

At the sentencing hearing, which is discussed in greater detail below, the trial court denied probation, and sentenced appellant to the middle term of three years in state prison for the sale/transportation of methamphetamine, and to a concurrent middle term of two years for the receiving stolen property conviction. This appeal followed.

III.

Legal Discussion

To put appellant's appellate arguments in the proper factual context, we begin with a review of the precise terms of his guilty plea on June 23. The terms were first placed on the record by defense counsel who stated that, as to Case No. 05-9460, appellant would plead guilty to count one (sale/transportation of methamphetamine), and â€