People v. Orozco CA3

Filed 2/3/23 P. v. Orozco CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Amador) ----

THE PEOPLE, C096368

Plaintiff and Respondent, (Super. Ct. No. 19-CR-29234)

v.

HECTOR OROZCO,

Defendant and Appellant.

Appointed counsel for defendant Hector Orozco has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief. Defendant filed a letter brief arguing the trial court erred in imposing a two-year low term prison sentence and instead should have imposed one-third

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of the applicable middle term pursuant to Penal Code1 section 1170.01, subdivision (a). We affirm. FACTUAL AND PROCEDURAL BACKGROUND In March 2019, while defendant was incarcerated in state prison, a correctional officer found two bindles in defendant’s pocket. The officer tested one of the bindles and confirmed it was methamphetamine. One of the bindles weighed 4.1 grams, while the other weighed 1.5 grams, without packaging. During the preliminary hearing, the officer testified that a typical methamphetamine user will use one-half gram per day. In the officer’s experience, 5.6 grams was a large amount of methamphetamine and indicated defendant possessed the drugs for sale. Defendant confirmed during his preliminary hearing testimony that the bindles both contained methamphetamine. He explained that the drugs were for his personal use, and he had a larger amount because he would typically buy enough for one or two weeks at a time. Defendant was charged with possession for sale of a controlled substance and possession of contraband in a state correctional facility. It was further alleged defendant had four prior strikes. The trial court granted defendant’s request to represent himself. In March 2022, defendant requested a court trial and waived his right to a jury trial. In May 2022, while defendant was still incarcerated, the parties agreed to submit the matter to the trial court based on the preliminary hearing transcript and the opinion of defendant’s expert. The parties further agreed that defendant would be found guilty of possession of contraband in a correctional facility, the enhancement allegations would be