People v. Henderson CA4/1 ( 2014 )

Filed 5/14/14 P. v. Henderson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064604
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD223424 &
SCD239086)
ANTOINE D. HENDERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.
Jill Marnie Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Appellant Antoine D. Henderson admitted having violated the conditions of his
probation with respect to two prior cases. The trial court imposed a previously stayed
sentence of eight years in prison with respect to one of the cases, and revoked probation
as to the other.
Appointed appellate counsel filed a brief presenting no argument for reversal, but
inviting this court to review the record for error in accordance with People v. Wende
(1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record
for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende,
we affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, Henderson was charged with unlawfully selling marijuana (Health & Saf.
Code, § 11360, subd. (a))1 and unlawfully possessing marijuana (§ 11359) in superior
court case No. SCD223424. The information also alleged that Henderson had suffered
four prison priors (Pen. Code, §§ 667.5, subd. (b), 668) and a prior serious or violent
felony (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12). In 2010, Henderson entered a "plea
to the sheet." At sentencing, the trial court struck the prior strike allegation and
sentenced Henderson to the middle term of three years on count 1, plus one year for each
of the four prior prison allegations, for a total of seven years. The trial court imposed the
middle term on count 2, which the court stayed pursuant to section 654. The trial court
1 Further statutory references are to the Health and Safety Code unless otherwise
specified.
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suspended execution of the sentence and placed Henderson on formal probation for a
period of three years.
In September 2010, the San Diego County probation department filed a report of
rearrest, based on Henderson's possession of a controlled substance and his failure to
submit a valid sample for testing for use of controlled substances. Approximately a
month later, Henderson admitted that he had violated the conditions of his probation.
The trial court revoked, modified, and reinstated probation. Henderson agreed to waive
past, present and future presentence custody credits.
In March 2012, Henderson was charged with one count of possessing
methamphetamine (§ 11377, subd. (a)); one count of possessing methamphetamine for
sale, while armed with a handgun (§ 11378; Pen. Code, § 12022, subd. (c)); one count of
unlawfully possessing methamphetamine while armed with a loaded firearm (§ 11370.1,
subd. (a)); and one count of unlawfully carrying a loaded firearm (Pen. Code, § 25850,
subd. (a)) in case No. SCD239086. As to the charge of possessing methamphetamine for
sale, the information also alleged that Henderson had suffered two prior violations of
section 11379. The information further alleged that Henderson had suffered four prison
priors (Pen. Code, §§ 667.5, subd. (b), 668) and a prior strike offense (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12). The four new charges in case No. SCD239086 all arose out of
an incident that occurred on February 6, 2012.
In that case, Henderson agreed to plead guilty to one count of transporting
methamphetamine in violation of section 11379, subdivision (a) (which was added to
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charges by amendment)), and also agreed to admit to having suffered two prior section
11379 convictions, within the meaning of section 11370.2, subdivision (a), in exchange
for dismissal of the remaining counts and allegations and an agreed upon sentence of
eight years in prison, to be stayed.
After having found Henderson ineligible for drug court, in July 2012, the trial
court sentenced Henderson to the low term of 2 years, plus an additional three years each
for the two prior violations of section 11379 allegations, for a total term of eight years.
The trial court suspended execution of the sentence and placed Henderson on formal
probation for three years.
In November 2012, probation reports filed in both Nos. SCD223424 and
SCD239086 alleged that Henderson had violated the terms and conditions of his
probation by failing to report to his probation officer as directed. In February 2013,
Henderson admitted the probation violation, acknowledging that he had failed to remain
in contact with his probation officers. The trial court revoked and reinstated probation in
both cases.
The probation department filed a report of rearrest on March 18, 2013, in case No.
SCD239086. The report alleged that Henderson had violated probation by failing to
remain law abiding, failing to submit his person or property to a search, and failing to
report any change of address or employment to his probation officer. The report further
alleged that on March 6, 2013, Henderson had been booked into the county jail and
charged with transporting or furnishing a controlled substance, in violation of section
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11379, subdivision (a); possessing a controlled substance for sale, in violation of section
11378; and possessing a controlled substance, in violation of section 11377, subdivision
(a).
On May 6, 2013, Henderson admitted violating probation in case Nos.
SCD223424 and SCD239086, in exchange for the dismissal of his most recent case (case
No. SCD246722). At that time, the prosecutor stated, "The consequence of all this . . . is
that [Henderson] will be sentenced to eight years in state prison." The trial court revoked
probation in case Nos. SCD223424 and SCD239086. At sentencing on August 7, the
trial court imposed the previously stayed eight-year sentence in SCD239086, and
terminated probation in case No. SCD223424.
Henderson filed a timely notice of appeal in case Nos. SCD223424 and
SCD239086.
III.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings in the trial court. Counsel presented no argument for reversal but invited this
court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but
not arguable, issues:
(1) "Did appellant receive sufficient notice of the claimed probation
violation in case SCD223424?"
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(2) "Was the trial court required to elicit from appellant waivers of
his constitutional rights prior to accepting his admission of the
probation violation?"
(3) "Was appellant properly sentenced in accordance with the plea
agreement?"
After this court received counsel's brief, we gave Henderson an
opportunity to file a supplemental brief. He did not do so.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders,
supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no
reasonably arguable appellate issue. Henderson has been adequately represented by
counsel on this appeal.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.
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