People v. Moraga CA1/1

Filed 6/12/14 P. v. Moraga CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A140434 v. ANTHONY V. MORAGA, (Lake County Super. Ct. No. CR929981) Defendant and Appellant.

Defendant Anthony V. Moraga pled guilty to a violation of Health and Safety Code section 11377, subdivision (a), and admitted one prior serious or violent felony. Defendant was placed on Proposition 36 probation for a period of three years subject to various terms and conditions. The trial court found defendant in violation of probation and sentenced him to the upper term of three years in state prison doubled to six years pursuant to Penal Code section 1170.12, subdivision (c). Defendant filed a timely notice of appeal, and appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which he raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief. We have received no such brief. We have examined the entire record in accordance with Wende. We conclude that no arguable issue exists on appeal and affirm.

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Procedural and Factual Background On July 3, 2012, in the Lake County Superior Court, defendant was charged with the transportation and sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11379, subdivision (a) (count 1); possession of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11377, subdivision (a) (count 2); possession of a controlled substance (Hydrocodone (Vicodin)) in violation of Health and Safety Code section 11350, subdivision (a) (count 3); bringing a controlled substance, device, and paraphernalia into county jail in violation of Penal Code section 4573 (count 4); and possession of a device used for smoking a controlled substance, in violation of Health and Safety Code section 11364.1 (count 5). The complaint also alleged one violent or serious felony conviction pursuant to Penal Code sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d). At his arraignment on July 10, 2012, defendant pled not guilty to all counts, and denied all special allegations. On July 30, 2012, pursuant to a plea bargain and negotiated disposition entailing Proposition 36 probation pursuant to Penal Code section 1210 et seq., defendant withdrew his not guilty pleas and pled guilty to count 2 in violation of Health and Safety Code section 11377, subdivision (a). Defendant also admitted one prior serious or violent felony conviction within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d). Before pleading guilty, defendant signed a “Proposition 36” felony plea form and waiver of constitutional rights in which he stated that he would plead guilty to count 2 (possession of methamphetamine) in violation of Health and Safety Code section 11377, subdivision (a), and admit one prior serious violent felony conviction in exchange for Proposition 36 probation. Defendant was informed of, and he waived, his rights to a preliminary hearing, to trial by jury, to confront and cross-examine witnesses, to subpoena witnesses for his defense and to testify in his own defense, and his privilege against self-incrimination. Defense counsel joined in the waiver of defendant’s rights, concurred in the entry of his plea, and stipulated to a factual basis for the plea. In open