People v. Atencio CA3

Filed 5/2/16 P. v. Atencio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C078602

Plaintiff and Respondent, (Super. Ct. No. CM041963)

v.

ANGELO ANTENCIO,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND 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.) The factual basis was taken from the probation report, as stipulated by the parties. On October 1, 2014, an officer detained defendant Angelo Atencio, believing him to be Paul Sackett (an individual known to the officer to have outstanding warrants for his arrest). Defendant told the officer he was not Mr. Sackett and provided his name, but could not provide any identification. The officer performed a patdown search of defendant and discovered a glass methamphetamine smoking pipe. Defendant was

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arrested and, after being searched, was found to possess two methamphetamine smoking pipes, both containing methamphetamine residue. The officer also found a plastic baggie containing six smaller baggies containing a gross weight of 1.46 grams of methamphetamine on the ground nearby, and two separate baggies containing a gross weight of 59.17 grams of marijuana in defendant’s backpack. Defendant admitted the marijuana was his, but denied ownership of the methamphetamine. Defendant was charged by criminal complaint with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) (count 1)), misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c) (count 2)), and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364.1, subd. (a)(1) (count 3)). The complaint alleged five prior prison terms1 (Pen. Code, § 667.5, subd. (b)) and one prior strike conviction (Pen. Code, §§ 667, subds. (b)- (i), 1170.12).2 Defendant entered a negotiated plea of no contest to count 1 and admitted two prison priors (one for grand theft (§ 487, subd. (c)) & one for felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in exchange for a stipulated five-year state prison sentence and dismissal of all remaining charges and enhancements with a Harvey3 waiver. The trial court suspended “imposition” of sentence and, finding this to be an unusual case, placed defendant on formal probation for three years subject to general