People v. Toucher CA3

Filed 12/3/13 P. v. Toucher CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C073984

v. (Super. Ct. No. 62115015)

KENNETH DUANE TOCHER,

Defendant and Appellant.

Appointed counsel for defendant Kenneth Duane Tocher asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

1

I Because the matter was resolved by plea and defendant waived referral to the probation department, the facts are taken from the prosecutor’s statement of factual basis for the plea. In July 2012, defendant knowingly and intentionally possessed property that had been stolen from a Placer County retailer, and knowingly possessed a usable amount of methamphetamine, knowing the substance to be methamphetamine. After his Marsden1 motion was denied, defendant pleaded no contest to receiving stolen property (Pen. Code, § 496, subd. (a))2 and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in exchange for dismissal of three other counts and an unrelated case. The trial court sentenced defendant to the stipulated term of two years in jail, awarded 11 days of custody credit and 10 days of conduct credit, and ordered defendant to pay a $240 restitution fine (§ 1202.4), a $240 parole revocation fine (§ 1202.45), an $80 court operations fee (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment (Gov. Code, § 70373). Defendant’s motion to withdraw his plea was dropped. Defendant obtained a certificate of probable cause. II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief, and defendant filed a supplemental brief raising various issues, which we address in turn.