People v. Petkus CA3

Filed 4/11/16 P. v. Petkus CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C079967

Plaintiff and Respondent, (Super. Ct. No. CM-042721)

v.

VICTOR ADAM PETKUS,

Defendant and Appellant.

Defendant Victor Adam Petkus pleaded no contest to driving or taking a vehicle without consent. (Veh. Code, § 10851, subd. (a).) On appeal, he contends the trial court abused its discretion by imposing the upper term sentence. Disagreeing, we affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND Case No. CM-042721 On March 2, 2015, a California Highway Patrol officer noticed defendant standing next to a car stopped on a highway off-ramp. Defendant said the car had run out of gas, and the officer helped him move it to a safe location. The officer ran a search on the car’s license plates and discovered the car had been reported as stolen that same day. The car’s owner later told police he did not know defendant and had not given defendant permission to possess the car. The officer searched the car and found drug paraphernalia, methadone, and Dilaudid. Defendant admitted to being a drug addict but said none of the contraband belonged to him. Defendant was arrested but released from custody two days later. Case No. CM-042773 On March 22, 2015, police found defendant driving a different car, also stolen. Police found drug paraphernalia, heroin, and stolen goods in the car, and defendant’s passenger had a hypodermic needle in his sock. Defendant again admitted to being a drug user. Plea and Sentence In case No. CM-042721, defendant pleaded no contest to driving or taking a vehicle without consent (count 1; Veh. Code, § 10851, subd. (a)) and admitted a prior strike (Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b)). Pursuant to the parties’ agreement, the court dismissed with a Harvey1 waiver: (1) all counts related to case No. CM-042773; and (2) count 2 in case No. CM-042721, possession of an opium pipe (Health & Saf. Code, § 11364, subd. (a)). The court also struck the additional punishment for the prior strike. (Pen. Code, § 1385, subd. (c).)