Filed 1/4/18 P. v. Strickland 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Siskiyou)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MALCOLM LOWELL STRICKLAND,

Defendant and Appellant.
C084241

(Super. Ct. No. MCYKCRF2015393, MCYKCRF2015336, MCYKCRF2015689)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]



THE COURT:
Defendant and Appellant Malcolm Lowell Strickland has filed a petition for rehearing with this court. It is ordered that the unpublished opinion filed herein on December 14, 2017, be modified as follows:
Commencing on page 3, the paragraph beginning “Defendant filed a supplemental brief” is deleted and rewritten so it now reads in full:

Defendant filed a supplemental brief in which he asserts “the trial court erred in imposing sentence for escape (Penal Code section 4573). The court imposed 1/3 the midterm consecutive, but Penal Code section 4573(b)(2) requires the term to be fully consecutive.” While defendant’s supplemental brief references the Penal Code section that prohibits bringing a controlled substance into jail, we understand the focus of his concern to be the sentence imposed for escape (§ 4532, subd. (b)(2)). Here, defendant’s escape conviction was selected as the principal term, with a 12-year term (six-year upper term doubled for the strike) imposed for the crime. While consecutive terms for subordinate offenses are typically limited to one-third the middle term (§ 1170.1, subd. (a)), this limitation does not apply to the sentence for an offense selected as the principal term. Defendant’s sentence was correct.

This modification does not change the judgment. Appellant’s petition for rehearing is denied.

BY THE COURT:


/S/

HULL, Acting P. J.


/S/

ROBIE, J.


/S/

RENNER, J.

Filed 12/14/17 P. v. Strickland 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Siskiyou)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MALCOLM LOWELL STRICKLAND,

Defendant and Appellant.
C084241

(Super. Ct. No. MCYKCRF2015393, MCYKCRF2015336, MCYKCRF2015689)




This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. We briefly recount the facts and procedural history in accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, 124.
I. BACKGROUND
A. Case No. MCYKCRF2015393 (15-393)
On September 16, 2014, defendant Malcolm Lowell Strickland was incarcerated in the Siskiyou County Jail on a matter unrelated to this appeal. A search of his cell found that defendant had scraped away the brick around his window and stuffed the hole with toothpaste and toilet paper to conceal the damage. A sprinkler cover on the wall was pushed away with a metal plate placed over the cover. Defendant was the only occupant of his cell.
B. Case No. MCYKCRF2015336 (15-336)
On March 5, 2015, defendant was subjected to a traffic stop during which he handed the officer another person’s identification card. The individual he identified himself as had an outstanding warrant; defendant was arrested. A search of his vehicle found two hypodermic needles, 41.7 grams of liquid morphine sulfate, four metal spoons, and a small scale with white residue. Law enforcement officers recognized defendant and later verified his identify.
On March 29, 2015, defendant was searched by an officer with the Yreka Police Department pursuant to the terms of his probation and found in possession of eight used syringes.
Defendant pleaded guilty to felony identity theft (Pen. Code, § 530.5, subd. (a)) and the misdemeanor offenses of driving while an addict (Veh. Code, § 23152, subd. (c)), possession of morphine sulfate (Health & Saf. Code, § 11350, subd. (a)), driving without a license (Veh. Code, § 12500, subd. (a)), and two counts of possession of drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)) in case No. 15-336 and attempted escape (§ 4532, subd. (b)) in case No. 15-393 and admitted a prior strike and a prior prison term. As part of his plea, defendant would be released on a Cruz waiver and receive a stipulated disposition of seven years eight months in prison with execution suspended and five years’ formal probation.
C. Case No. MCYKCRF2015689 (15-689)
On November 12, 2014, a Siskiyou County correctional officer intercepted a letter from defendant to L.C. explaining how to smuggle drugs into the Siskiyou County Jail by using books. On November 17, 2014, a package from L.C. to defendant containing cigarettes, matches, and Dilaudid and Oxycontin pills was intercepted by a correctional officer.
In September 2015, defendant admitted violating his Cruz waiver.
In September 2016, in case No. 15-689, defendant pleaded guilty to knowingly bringing a controlled substance into county jail (§ 4573) and admitted the same strike and prison prior he admitted in case Nos. 15-336 and 15-393.
Sentencing defendant in all three cases, the trial court imposed a 16-year four-month state prison term, ordered various fines and fees, and awarded 1200 days of presentence credit (600 actual and 600 conduct).
Defendant appeals. He did not obtain a certificate of probable cause.
II. DISCUSSION
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 filed a supplemental brief in which he asserts the trial court erred in imposing one-third the middle term for his escape offense rather than a full consecutive term. An escape or attempted escape is punishable by a full consecutive term served after the completion of the term the prisoner was serving if the crime is “committed by force or violence.” (§ 4532, subd. (b)(2).) Defendant’s crime, attempted escape without force of violence, does not contain a provision requiring a full consecutive term. (§ 4573, subd. (a).) Since defendant’s escape offense was a subordinate term, it was subject to the requirement of section 1170.1 that subordinate terms for a consecutive offense are one-third the middle term unless otherwise provided for by law. (§ 1170.1, subd. (a).) The sentence imposed by the trial court was correct.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
III. DISPOSITION
The judgment is affirmed.


/S/

RENNER, J.



We concur:


/S/

HULL, Acting P. J.


/S/

ROBIE, J.