P. v. Petrone

Filed 3/10/06 P. v. Petrone CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed.

On April 28, 2003, in San Diego County Superior Court case No. SCD172717, Israel Lascano Petrone (Petrone) entered a negotiated guilty plea to burglary (Pen. Code, § 459)[1][1] and admitted serving a prior prison term (§§ 667.5, subd. (b), 668). The court sentenced him to prison for the two-year middle term for burglary, dismissed the prior prison term enhancement, stayed execution of sentence and placed him on probation for three years. On December 28, 2004, in San Diego County Superior Court case No. SCD177206, Petrone entered a negotiated guilty plea to carjacking (§ 215, subd. (a)) and admitted serving a prior prison term in exchange for a stayed stipulated six-year term and dismissal of other charges. The court revoked and reinstated probation in SCD172717 and sentenced him in SCD177206 to prison for six years (the five-year upper term for carjacking, enhanced one year for the prior prison term), stayed execution of sentence and placed him on probation for five years. The court subsequently held an evidentiary hearing on an order to show cause why probation should not be revoked. The court revoked probation and executed the stayed sentences ordering the sentence for burglary run concurrent with the sentence for carjacking.

FACTS UNDERLYING PROBATION REVOCATION

On April 8, 2005, the probation department advised the court that on February 7, 2005, Petrone was released from custody. On March 17 he was arrested after testing positive for use of methamphetamine. On May 17 the court held an evidentiary hearing on the charge that Petrone had violated the terms and conditions of probation by testing positive for the use of methamphetamine and driving while unlicensed and without insurance. At the hearing a probation officer testified that Petrone tested positive for methamphetamine use and admitted driving while unlicensed. The court found Petrone had violated the conditions of probation by possessing and using a controlled substance.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether sufficient evidence supports the court's revocation of probation; and (2) whether the trial court abused its discretion in not reinstating probation.

We granted Petrone permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Petrone on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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[1][1] All statutory references are to the Penal Code.