People v. Thomas CA1/2

Filed 10/8/14 P. v. Thomas CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A141405 v. DARRYL DEAN THOMAS, (San Mateo County Super. Ct. No. SC079114A) Defendant and Appellant.

I. INTRODUCTION Appellant Darryl Dean Thomas appeals from the judgment and sentence following his plea of no contest to a charge of bringing a controlled substance into jail. His court- appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was informed of his right to file a supplemental brief, which he has not done. As the appeal is based solely on grounds occurring after entry of the plea, and does not challenge the validity of the plea, it is authorized by California Rules of Court, rule 8.304(b)(4)(B). II. FACTUAL AND PROCEDURAL BACKGROUND1 In September 2013, appellant was stopped by an East Palo Alto police officer who recognized him from prior contacts. The officer conducted a records check and arrested him on an outstanding misdemeanor warrant. When booked into the San Mateo County 1 Our recitation of the facts is taken from the transcript of the preliminary hearing and the probation report.

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Jail, appellant was strip searched and found to be in possession of a crack pipe and 0.32 grams of heroin, a usable amount. At the time of his arrest in this matter, appellant was 51 years old and had used cocaine “for approximately the past 30 years.” By information filed on October 2, 2013, the San Mateo County District Attorney charged appellant with bringing a controlled substance (heroin) into the San Mateo County Jail in violation of Penal Code section 4573, a felony (count 1); simple possession of a controlled substance (heroin) in violation of Health and Safety Code section 11350, subdivision (a), a felony (count 2); and possession of paraphernalia in violation of Health and Safety Code section 11364.1, a misdemeanor (count 3). As to counts 1 and 2, the information also alleged 11 prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4); two prior strikes within the meaning of Penal Code section 1170.12, subdivision (c)(1); seven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b); and eight prior felony drug convictions within the meaning of Health and Safety Code section 11370, subdivision (a). On January 6, 2014, appellant pleaded no contest to the charge of bringing heroin into the jail and admitted the following enhancements: (1) the Penal Code section 1203, subdivision (e)(4), allegation; (2) one prior strike; and (3) seven prior prison terms. The remaining charges and allegations were dismissed.2 The plea was in exchange for a six- year maximum sentence, referral to probation for a probation report, and the ability to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the strike.3 Appellant chose the court’s offer of the six year top with a referral to