People v. Atencio CA3 ( 2016 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
1 The alleged prison priors included convictions for violation of Penal Code sections
211, 12020, subdivision (d)(1), 290, subdivision (a)(1)(A), 487, subdivision (c), and
Health and Safety Code section 11377, subdivision (a). The prior strike alleged a
conviction for violation of Penal Code section 211.
2 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
3 People v. Harvey (1979) 25 Cal.3d 754.
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condition numbers 1 through 15 and all special conditions as set forth in the probation
report, including that defendant “obey all laws” and “serve 180 days as a probationary
term with credit for time served, to wit, 50 days,” and granted probation discretion to
release defendant into a one-year treatment program.4 The court imposed a $300
restitution fine (§ 1202.4, subd. (b)) and a matching probation revocation fine, stayed
pending successful completion of probation (§ 1202.44); a $40 court operations
assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); $195
for the criminal lab analysis fee plus penalties and assessments as set forth in the
probation report; $585 for the drug program plus penalties and assessments as set forth in
the probation report; and probation supervision fees of $164 per month for three months
(§ 1203.1b). The court reserved jurisdiction to determine victim restitution and found
defendant had no ability to pay for the presentence investigative report and the public
defender fees.
On January 16, 2015, the probation department filed a petition alleging defendant
violated probation by providing three urine samples that tested positive for controlled
substances; one sample tested positive for marijuana and two samples tested positive for
both methamphetamine and marijuana.
Defendant admitted one of the alleged probation violations for providing a urine
sample that tested positive for marijuana. The trial court found him in violation of
probation, terminated probation, and imposed a sentence of five years in state prison (the
upper term of three years plus a one-year term each for two of the prison priors). In
imposing the upper term, the court noted there were no circumstances in mitigation and
the circumstances in aggravation included that defendant’s prior convictions as an adult
were numerous and increasing in seriousness, he was on probation or parole at the time
4 The court also found defendant in violation of probation in case No. SCR95965 (not
part of this appeal) and ordered him to serve a concurrent six-month probationary term.
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the crime was committed, and his prior performance on probation and parole was
unsatisfactory. The court ordered defendant to pay all fees and fines previously ordered,
imposed the $300 probation revocation fine due in light of probation having been
revoked, imposed a $300 parole revocation fine, stayed pending successful completion of
parole (§ 1202.45), and awarded defendant 196 days of presentence custody credit (98
actual days plus 98 days of conduct credit).
WENDE REVIEW
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436,
requesting the court to review the record and determine whether there are any arguable
issues on appeal. Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communication from defendant.
We have undertaken an examination of the entire record pursuant to Wende, and
we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
MURRAY, J.
We concur:
NICHOLSON, Acting P. J.
MAURO, J.
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