Filed 8/13/14 P. v. Carlton CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040528
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F25040)

         v.

ELWYN ALLAN CARLTON,

         Defendant and Appellant.



         Defendant Elwyn Allan Carlton was driving a vehicle when it was stopped by the
police just after midnight because the vehicle was weaving. Defendant told the officers
that his driver’s license had been suspended. The police impounded defendant’s vehicle
and did an inventory search. A baggie containing 12.6 grams of methamphetamine was
found in a hidden compartment under the center console of defendant’s vehicle. A scale
with white powdery residue on it was found inside the center console, and baggies were
found next to the center console. Defendant was arrested. A search of defendant’s
person turned up four additional baggies of the same type as those in the vehicle in one of
his pockets and $468 in cash in another pocket.
         Defendant was charged by information with possession of methamphetamine for
sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf.
Code, § 11379, subd. (a)), and false compartment activity (Health & Saf. Code,
§ 11366.8, subd. (a)). It was further alleged that he had suffered a prior strike conviction
(Pen. Code, § 667, subds. (b)-(i)) and a prior controlled substance conviction (Health &
Saf. Code, § 11370.2, subd. (a)), and that he had served prison terms for nine prior felony
convictions (Pen. Code, § 667.5, subd. (b)).
       Defendant pleaded no contest to the three substantive counts and admitted five of
the prison priors, the strike prior, and the controlled substance prior in exchange for a
nine-year ceiling on his prison sentence. The probation report stated that Penal Code
section 654 barred punishment for both the possession and transportation counts because
these two counts “were one course of conduct . . . .” The probation report recommended
a concurrent term for the false compartment count.
       The court dismissed the strike prior, which was more than 30 years old. It
imposed the middle term of two years for the possession for sale count, a consecutive
one-year term for the transportation count, and a consecutive eight-month term for the
false compartment count. The court stated that it was selecting consecutive terms
“because these are distinct criminal acts, with different elements.” It found that Penal
Code section 654 did not apply. “The Court finds the false-compartment activity does
not merge with the transportation, and I’m electing to not make a 654 finding.” The court
imposed consecutive one-year prison terms for two of the five prison priors and struck
the other three prison priors. A three-year consecutive term was imposed for the prior
controlled substance conviction. The total prison term was eight years and eight months.
       When the defense interposed a Penal Code section 654 objection to the imposition
of consecutive terms for the transportation and false compartment counts, the court
overruled the objection. It said: “Well, to be quite candid, if I did that, then I’d just add a
year from another one of the priors. It was my intent to get to eight years, eight months
so that I could respect the nine-year lid, but I do feel that the sentence is appropriate.”
Defendant timely filed a notice of appeal challenging only his sentence.
       Appointed appellate counsel has filed an opening brief which states the case and
the facts but raises no issues. Defendant was notified of his right to submit written

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argument on his own behalf but has failed to avail himself of the opportunity. Pursuant
to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have
concluded that there are no arguable issues on appeal.
      The judgment is affirmed.



                                         _______________________________
                                         Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Elia, J.




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