People v. Slay CA3

Filed 12/8/15 P. v. Slay CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C079479

Plaintiff and Respondent, (Super. Ct. No. CRF14-668)

v.

BOBBY BYRON SLAY, SR.,

Defendant and Appellant.

Appointed counsel for defendant Bobby Byron Slay, Sr., has filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief claiming: (1) his case took too long to progress from arrest to conviction; (2) he received ineffective assistance of counsel at sentencing; (3) he had a valid medical marijuana card; (4) his jail sentence should be one year rather than two, and (5) he was not armed when he was arrested.

1

As we explain, defendant’s claims lack merit. We have reviewed the record searching for any arguable error that would result in a disposition more favorable to him. Because the trial court inadvertently failed to dismiss count 2 and strike the penalty enhancements as to both counts 1 and 2, we modify the judgment to do so, thus conforming the judgment to the actual plea. We affirm the judgment as modified. BACKGROUND In September 2012, defendant was charged in Yuba County Superior Court case No. F-13-658 (case No. 658) with transporting marijuana with the intent to sell (Health & Saf. Code, § 11360, subd. (a)), and possessing concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), both felonies. In January 2014, the trial court ordered defendant to appear in court in case No. 658. Defendant failed to appear as directed in March and a bench warrant issued. Defendant appeared in court in September 2014, and was ordered to appear in October. Defendant again failed to appear. The People then charged defendant in case No. 14-668 (Case No. 668) with two counts of felony failure to appear (FTA). (Pen. Code, § 1320, subd. (b).)1 The People further alleged as to both counts that defendant was released on his own recognizance (OR) in case No. 658 at the time of his FTA. (§ 12022.1, subd. (b).) Pursuant to a negotiated plea agreement, defendant pleaded guilty to one felony FTA count (count 1). In exchange for his plea, the People agreed they would move to dismiss the remaining FTA count (count 2) at sentencing, and strike the two enhancements, as well as dismiss case No. 658 in its entirety with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The People further agreed defendant would be released on OR for six months on the condition that he complete a residential drug