People v. Gaytan CA5

Filed 12/13/13 P. v. Gaytan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F065828

v. (Super. Ct. No. 12CM2200)

DANIEL FRANCISCO GAYTAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Franson, J., and Peña, J.

Appellant, Daniel Francisco Gaytan, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code,1 § 667, subds. (b)-(i)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we determined that the trial court did not impose a mandatory parole revocation restitution fine. We will modify the judgment to include this fine and affirm the judgment as modified. FACTUAL AND PROCEDURAL HISTORY On June 23, 2012, Gaytan was a backseat passenger in a car that Hanford police officers stopped to conduct a warrant arrest. After Gaytan and the other occupants were removed from the car, the officers obtained the owner’s consent to search it. In the backseat where Gaytan had been sitting, the officers found a pair of blue jeans. In one pants pocket, the officers found a wallet containing Gaytan’s license. In another pocket, they found a bindle containing .04 grams of methamphetamine hidden in a pack of cigarettes. On July 17, 2012, the district attorney filed an information charging Gaytan with possession of methamphetamine and having a prior conviction within the meaning of the three strikes law. On August 3, 2012, Gaytan pled guilty to the possession of methamphetamine charge and admitted the three strikes allegation in exchange for a stipulated 32-month prison term, the mitigated term of 16 months, doubled because of Gaytan’s prior strike conviction.