P. v. Vaughan CA6

Filed 4/3/13 P. v. Vaughan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038551 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS101958A)

v.

CARL VAUGHAN,

Defendant and Appellant.

Pursuant to a negotiated disposition, Carl Vaughan (defendant) pleaded no contest to one count of possessing marijuana in prison (Pen. Code, § 4573.6); and admitted that he had one prior strike conviction. (§ 1170.12)1 In exchange for his no contest plea and admission, defendant was promised a four year prison term to be served consecutively with a sentence he was already serving. On May 7, 2012, the same day that defendant entered his plea, the court sentenced defendant to the lower term of two years doubled because of the prior strike conviction. The court did not award defendant any credit for time served because the court determined that he was not entitled to any credit since he was at the time serving a prison sentence. The court imposed a $240 restitution fund fine, imposed but suspended a

1 All unspecified section references are to the Penal Code.

parole revocation fine in the same amount, and imposed $70 in assessments. Thereafter, defendant filed a timely notice of appeal based on only " 'sentencing issues.' " Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested. On December 12, 2012, we notified defendant of his right to submit written argument on his own behalf within 30 days. That time has passed and we have not received a response from defendant. Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded there is no arguable issue on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) Facts2 On September 21, 2009, in conducting a search of defendant's prison cell, correctional officers found a quantity of a green leafy substance wrapped in toilet paper on the ground under the window of the cell. In addition, they located more of the green leafy substance in two socks underneath the bottom bunk. Defendant was the only inmate assigned to the cell. Later, the leafy substance was tested at the Department of Justice laboratory in Freedom, California; it was determined to be a usable quantity of marijuana.