Filed 4/21/17 P. v. Marroquin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY OSWALDO MARROQUIN,

Defendant and Appellant.


C081339

(Super. Ct. No. CM042817)


Appointed counsel for defendant Henry Oswaldo Marroquin asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
We provide the following brief description of the facts and procedural history of the case pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 124. The following factual summary is from the probation report, which the parties stipulated provided the factual basis for defendant’s plea.
I
On December 4, 2014, an officer from the Butte County Probation Department observed surveillance video taken at the scene of a recent homicide in Oroville depicting defendant’s minor sibling, J.M., in the company of several known gang members and in possession of several weapons. When the probation officer interviewed J.M. at school, J.M. admitted being at the scene and handling a gun, but denied leaving the property with the gun. J.M. was arrested for violating probation. He had $2,000 on his person at the time of the arrest.
While J.M. was being interviewed at school, probation officers conducted a probation search at his home. An officer observed defendant lower a black backpack over a fence behind the property and go back inside the home. Other officers entered the home and encountered defendant, his three-year old son, and his mother, M.L. After clearing the home, officers examined the backpack and found cocaine and methamphetamine.
Butte Interagency Narcotics Task Force agents arrived on scene and noticed two video surveillance cameras that appeared to have night vision capabilities pointed toward the front door and the street. Agents searched the residence and the backpack and found 244.51 grams of cocaine, 100.13 grams of methamphetamine, 2.61 grams of heroin, 552.7 grams of a cutting agent, 143.4 pounds of processed marijuana, 16.63 pounds of marijuana shake, various controlled substance pills, digital scales, drug paraphernalia, and packaging materials. In J.M.’s room, agents found indicia of the Norteño criminal street gang, a digital scale, multiple plastic baggies, and cocaine. In defendant’s bedroom, agents found two handguns, two loaded handgun magazines, multiple rounds of ammunition of various calibers, body armor, digital scales, and marijuana. Defendant admitted being a Norteño gang member, but denied any knowledge of the backpack or any other contraband found in the home. Defendant and M.L. were both arrested.
Defendant was charged by information with two counts of possession of a controlled substance for sale (Health & Saf. Code, § 11351 – counts 1 and 2, cocaine and heroin), possession of a controlled substance for sale (Health & Saf. Code, § 11378 – count 3, methamphetamine), possession of marijuana for sale (Health & Saf. Code, § 11359 – count 4), and possession of ammunition (Pen. Code, § 30305, subd. (a)(1) – count 5). As to counts 1 through 3, the information alleged defendant had two prior controlled substance convictions. (Health & Saf. Code, § 11370.2, subd. (a).) During the commission of counts 1 through 4, the information alleged defendant was personally armed with a firearm. (§ 12022, subd. (c).) Also, the information alleged defendant committed all counts for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)).
Prior to the filing of the information, the trial court heard and denied defendant’s motion pursuant to section 1538.5 to suppress the evidence against him.
On October 22, 2015, defendant entered a negotiated plea of no contest to count 1 and admitted the gang enhancement in exchange for dismissal of all remaining charges and allegations against him pursuant to a Harvey waiver, and dismissal of case No. CM042818 against M.L. The parties stipulated to the factual basis taken from the probation report.
On January 28, 2016, the court denied probation based on the nature and seriousness of defendant’s crime, the fact the defendant had a prior record demonstrating a pattern of regular and increasingly serious criminal conduct, and the fact defendant showed no remorse for his crimes. The court found the circumstances in aggravation included the fact defendant was armed during the crime; the crime involved planning, sophistication, and professionalism; the crime involved a large quantity of contraband; defendant engaged in conduct indicating he is a serious danger to society; he served a prior prison term; and he was on probation in Idaho when he committed the crime. Finding the circumstances in aggravation outweighed the circumstances in mitigation, the court sentenced defendant to serve the upper term of four years on count 1, plus four years for the gang enhancement, for an aggregate term of eight years in state prison. The court awarded defendant 52 days of presentence custody credit (26 actual days plus 26 days of conduct credit) and imposed the following fees and fines: a $2,400 restitution fine (§ 1202.4), a $2,400 parole revocation fine, suspended pending successful completion of probation (§ 1202.45), $195 for criminal laboratory analysis fees (Health & Saf. Code, § 11372.5) and $585 for drug program fees (Health & Saf. Code, § 11372.7), both to be broken down in the abstract of judgment, a $40 court operations assessment (§ 1465.8(a)(1)), a $30 conviction assessment (Gov. Code, § 70373), and a $736 presentence investigation report fee (§ 1203.1b). The abstract of judgment listed separately all fees, fines, penalties, and assessments included in the $195 criminal laboratory analysis fee and the $585 drug program fee.
Defendant filed a timely notice of appeal. He did not request a certificate of probable cause.
II
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) 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. To date, defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, supra, 25 Cal.3d 436, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
MURRAY, Acting P. J.



/s/
RENNER, J.