Filed 4/3/13 P. v. Vaughan CA6
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              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.




2
       The facts are taken from the preliminary hearing held on October 15, 2010.
                                             2
                                    Proceedings Below
       On October 10, 2010, the Monterey County District Attorney filed an information
in which defendant was charged with two counts of possession of a controlled substance
in prison (§ 4573.6).3 The information contained allegations that defendant had suffered
three prior strike convictions and had served three prior prison terms. (§§ 1170.12,
667.5, subd. (b).) On October 27, 2010, defendant pleaded not guilty to the charges and
denied the prior conviction and prison prior allegations.
       Subsequently, on September 27, 2011, defendant filed a motion pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, in which he asked the court to
exercise its discretion and dismiss his strike priors; on September 28, 2011, the court
granted the motion in part by dismissing two of the three.
       On May 7, 2012, defendant entered into a plea bargain in which the People agreed
to dismiss one of the possession counts in exchange for defendant's guilty plea to the
other count, admission of one strike prior and a prison sentence of four years to be served
consecutively to the sentence he was already serving. On the same day, defendant
initialed and signed a "WAIVER OF RIGHTS, PLEA OF GUILTY/NO CONTEST"
form.4 During the hearing on defendant's change of plea, the court confirmed with
defendant that he had gone over the form with his attorney and that the initials and
signature on the form were his. The court advised defendant of his constitutional rights;
defendant waived those rights. Thereafter, defendant entered a no contest plea to one
count of possession of a controlled substance in prison and admitted that he had one prior
strike conviction. The parties stipulated to, and the court found, a factual basis for the


3
        The two counts were alleged to have occurred on different days—September 14,
and September 21, 2009.
4
        In the form, defendant was advised of his constitutional rights, the consequences
of his pleas, including immigration consequences and the maximum term of
imprisonment for his offenses. Defendant waived his constitutional rights.
                                              3
plea as set forth in the preliminary hearing transcript as to only the count to which
defendant had pleaded.
       As noted, thereafter, pursuant to the negotiated disposition, the court sentenced
defendant to a two year prison term doubled because of the strike prior; the court granted
the People's motion to dismiss the second possession count in accordance with the
negotiated disposition.
                                        Conclusion
       Upon our independent review of the record, we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal. The sentence imposed was
consistent with the plea bargain. The restitution fine and assessments imposed were
supported by the law and facts. At all times appellant was represented by competent
counsel.
                                        Disposition
       The judgment is affirmed.


                                           ______________________________
                                           ELIA, J.


WE CONCUR:




_____________________________
RUSHING, P. J.


_____________________________
PREMO, J.


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