People v. Roots-Scott CA3

Filed 8/23/16 P. v. Roots-Scott CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C079443

v. (Super. Ct. No. 15F02103)

DONALD ROOTS-SCOTT,

Defendant and Appellant.

An amended complaint charged defendant Donald Roots-Scott with, among other things, felony carrying a concealed firearm (Pen. Code, § 25400, subd. (a)(1) -- count two) and misdemeanor possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a) -- count four). On May 27, 2015, the prosecutor sought further amendment of count four to replace Health and Safety Code section 11357,

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subdivision (a) with Health and Safety Code section 11357, subdivision (c). The trial court said the correction had already been made on the court’s copy. The prosecutor added that instead of “concentrated cannabis” count four should say “less than 28 grams of marijuana” There was no objection, the trial court said it would make that amendment, and it read the amended count four into the record, indicating that count four charged defendant with a misdemeanor violation of Health and Safety Code section 11357, subdivision (c), in that he unlawfully possessed less than 28 grams of marijuana. At the same hearing, defendant pleaded no contest to counts two and four. The factual basis for the plea was as follows: On April 4, 2015, defendant was contacted by law enforcement officers and found to be in possession of a loaded .40-caliber Taurus semiautomatic firearm. The firearm was concealed in a vehicle of which defendant was not the registered owner. The parties stipulated that, on the same day, defendant also committed a misdemeanor by possessing “less than 28 grams of marijuana” in violation of Health and Safety Code, section “11357(c).” The trial court suspended imposition of sentence and placed defendant on formal probation for five years with 90 days in county jail, minus credit for time served.1 On December 10, 2015, this court granted defendant’s application to file a late request for certificate of probable cause in the trial court. Defendant filed, and the trial court granted, a request for certificate of probable cause. Defendant now points out that Health and Safety Code section 11357, subdivision (c) applies to misdemeanor possession of more than 28.5 grams of marijuana, but defendant pleaded no contest to possessing less than 28 grams, which is an infraction under Health and Safety Code section 11357, subdivision (b). Accordingly, he contends