People v. Martin CA3

Filed 3/3/16 P. v. Martin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C079101

Plaintiff and Respondent, (Super. Ct. No. NCR88411)

v.

KEVIN DALE MARTIN,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We modify the sentence to comport with Penal Code section 654 and otherwise affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND On September 18, 2013, defendant Kevin Dale Martin was riding his bicycle at night without lights. An officer stopped him and determined he was on postrelease community supervision and subject to a search condition. Defendant had a bag that

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contained four small individual baggies, each containing methamphetamine. The total gross weight was 5.4 grams. Defendant told police he bought the methamphetamine for $50. The People later charged defendant with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a))1 and possession of methamphetamine for sale (§ 11378). The People further alleged defendant served six prior prison terms pursuant to Penal Code section 667.5, subdivision (b), and was four times previously convicted of crimes related to controlled substances trafficking (§ 11370.2, subd. (c)). Defendant pleaded guilty to both charges and admitted the four prior controlled substance trafficking convictions. In exchange for his plea, the People agreed they would move to dismiss the prior prison term allegations and that defendant could participate in Tehama County’s felony drug court program, serving up to one year in county jail. The People also agreed if defendant were found ineligible for drug court, he would be allowed to withdraw his plea. Defendant acknowledged the maximum possible sentence for his convictions, including the enhancement allegations, was 16 years. The probation department found defendant eligible for the drug court program. Accordingly, the trial court placed defendant on formal probation for three years, gave him credit for time served, and directed that defendant would serve 90 days in the county jail for any violation of probation or the felony drug court rules. On April 3, 2014, defendant tested positive for methamphetamine and self- disclosed he had consumed alcohol. He was remanded for seven days. On May 6, 2014, defendant tested positive for methamphetamine and was remanded for 15 days. Defendant tested positive for methamphetamine a third time on May 22, 2014. He was arrested and booked into the county jail for 30 days. After he was released from custody,