Filed 8/31/18 P. v. Smith CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Preston Alexander Smith (defendant) appeals from a judgment entered after he pleaded guilty to manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, § 11359), and pleaded no contest to false impersonation (Pen. Code, § 529, subd. (a)(3)),[1] with an on-bail enhancement (§ 12022.1, subd. (b)). Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Defendant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

Factual and Procedural Background

On July 27, 2015, an information was filed in case No. 15-80878 charging defendant with manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, § 11359).

The information was filed after Mendocino Major Crimes Task Force agents arrested defendant at a property that had a large operation for manufacturing butane honey oil, or concentrated cannabis, a derivative of marijuana. When the agents were at the property, defendant arrived there in a vehicle that contained a butane can. He told the agents that he had lost his job in Alabama after being convicted of possession of marijuana with intent to distribute. He came to California and was originally hired to do construction work at the property, but was introduced to the processing operation several days later. He continued to live and work at the property because he was homeless and had no money, and needed a place to stay.

On December 9, 2015, defendant pleaded guilty to both counts. The defense stipulated to a factual basis for both offenses, which at the time were felony offenses. Defendant indicated he would waive extradition on a pending hold issued by the State of Alabama.

On December 15, 2015, an information was filed in case No. 15-83986 charging defendant with two counts of false impersonation (§ 529, subd. (a)(3)) and alleging he was on bail when he committed the offenses (§ 12022.1, subd. (b)). This information was filed after it came to light that defendant had given officers a false name upon his arrest at the property. Defendant gave officers a friend’s name, which he continued to use throughout the criminal proceedings.

On January 7, 2016, defendant pleaded no contest to one count of false impersonation and admitted the on-bail enhancement. The trial court dismissed the second false impersonation count.

At a sentencing hearing on both cases, the parties informed the court that it appeared defendant had been on probation in Alabama for offenses carrying a 65-month prison sentence, and that Alabama wished to extradite him to face proceedings there. The trial court noted that defendant was ineligible for probation, and stated that the only issue presented was the appropriate sentence, and “whether or not there’s any purpose to be served by splitting it, since he’ll be picked up.” The court stated, “Ordinarily I would strongly be considering it, and I haven’t thought my way through a split, but if he ends up serving the custodial term and then he’s in Alabama custody and he doesn’t appear, then we have proceedings that I don’t know that they make that much sense.”

The prosecution argued, “I could read you the code section here about split sentencing where the default should not apply in this case, but I don’t think we should expect Alabama to do the heavy lifting here. I think that has to stand on its own. And I think that these cases need to stand on their own.” The defense argued for a mitigated term on the grounds that defendant’s actions had been motivated by the need to provide for himself, that he had expressed remorse for his actions, and that he had played a minor role in the operation. The prosecution opposed the request, noting there had been no early admission of guilt, and that the false impersonation charges arose only after the prosecution discovered that defendant had been using another person’s driver’s license.

The trial court stated that although defendant was not the leader of the operation, it doubted he “was somehow trapped there by circumstances[.]” The court also noted that the operation was “enormous” and “very dangerous.” The court stated that defendant’s background would “never, ever support a mitigated term” and that his actions in “wreak[ing] havoc on [his friend’s] credit and criminal history” and maintaining a false identity until three or four days before trial were “beyond the pale of reason[.]”

In case No. 15-83986, the trial court imposed the upper term of three years on the false impersonation charge and a consecutive two-year term on the enhancement, for a total term of five years. In case No. 15-80878, the court imposed a consecutive one-year, eight-month term (one-third the midterm) on the charge for manufacturing a controlled substance, and a concurrent two-year term on the charge for possession of marijuana for sale. The total term of imprisonment on both cases was 6 years 8 months, with the court ordering the sentence to be served in county jail under section 1170, subdivision (h). The court declined to split the sentence, stating that “if I felt that Mr. Smith could benefit from the services offered by probation I probably would have put him on probation. [¶] Also, he has a pending case in another state.”

On July 17, 2017, defendant filed a petition for resentencing on his felony conviction for possession of marijuana for sale on the ground that the offense had been redesignated as a misdemeanor. The trial court granted the motion, reduced the conviction to a misdemeanor, and resentenced him to a concurrent term of 180 days for the offense. Defendant requested that the court grant him a split sentence under section 1170, subdivision (h), which the prosecution opposed and the court denied.

Discussion

Defendant’s counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to defendant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with her responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)

Disposition

The judgment is affirmed.

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Jenkins, J.

We concur:

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Siggins, P. J.

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Ross, J.*

A152765/People v. Preston Alexander Smith