People v. Ekelund CA3

Filed 1/7/15 P. v. Ekelund CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte)

THE PEOPLE, C075694

Plaintiff and Respondent, (Super. Ct. No. CM037154)

v.

PAGET GARY EKELUND,

Defendant and Appellant.

Sentenced to 10 years in state prison pursuant to a plea agreement, defendant Paget Gary Ekelund contends the trial court wrongly denied his request to strike a prior strike. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A first amended information charged defendant with six felony counts of possession for sale of controlled substances under Health and Safety Code section 11351 (count 1, 14.25 grams or more of heroin; count 2, OxyContin; counts 3 & 4, morphine; count 5, hydromorphone; count 6, hydrocodone), one felony count of possession for sale of a controlled substance under Health and Safety Code section 11378 (count 7, methamphetamine), one felony count of possession for sale of a controlled substance

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under Health and Safety Code section 11350, subdivision (a) (count 8, methadone), and one felony count of child endangerment (count 9; Pen. Code, § 273a, subd, (a)).1 The information also charged three misdemeanor drug counts (count 10, possession of opium pipe, injection device, or smoking device [Health & Saf. Code, former § 11364.1]; count 11, possession of a controlled substance, Lorazepam [Health & Saf. Code, § 11375, subd. (b)(2)]; count 12, possession of a controlled substance, Soma [carisoprodol] [Bus. & Prof. Code, § 4060]). As to counts 1 through 9, the information alleged that defendant had suffered six prior convictions (§ 667.5, subd. (b)), one prior strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and one prior controlled substance conviction (Health & Saf. Code, § 11370.2, subd. (a)). Defendant entered a plea of no contest to count 1 and admitted the prior strike allegation and two prior prison term allegations, in return for the dismissal of the remaining counts and allegations. Defendant’s plea agreement stated that he faced a maximum exposure of 10 years in state prison and that he could file a request to strike his prior strike. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The trial court took the factual basis for the plea from the preliminary hearing. The evidence presented there showed that on August 31, 2012, a City of Chico police officer conducting a probation search of defendant’s residence discovered a variety of controlled substances in his bedroom, including 18 grams of heroin, together with indicia of possession for sale, and defendant admitted possessing the heroin for purposes of sale. The probation report recommended a 10-year state prison sentence (four years, the upper term, on count 1, doubled for the strike, plus two years for the prior prison terms). The report noted that defendant had numerous prior adult convictions and prior prison