Filed 2/3/14 P. v. Silveira CA5

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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066312
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM2458)
                   v.

GABRIEL LEAL SILVEIRA,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Poochigian, J, and Peña, J.
       Appellant, Gabriel Leal Silveira, pled no contest to transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted allegations that
he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667,
subds. (b)-(i)). Following independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende), we found that the court neglected to impose a mandatory
parole revocation fine. We will modify the judgment to include this fine and affirm the
judgment as modified.
                     FACTUAL AND PROCEDURAL HISTORY
       On July 11, 2012, at approximately 11:17 a.m., officers from various law
enforcement agencies executed a search warrant at Silveira’s residence in Hanford.
Silveira was stopped as he drove a truck away from the house. During an ensuing search
of the truck, officers found a plastic container attached to the underside of the truck’s
body. Inside the container, officers found 14 grams of methamphetamine and packaging
material. During the traffic stop, Silveira showed symptoms of being under the influence
of a controlled substance. A urine test confirmed the substance was methamphetamine.
       On September 12, 2012, the district attorney filed a first amended information
charging Silveira with transportation of methamphetamine (count 1), possession of
methamphetamine for sale (count 2/Health & Saf. Code, § 11378), possession of
methamphetamine (count 3/Health & Saf. Code, § 11377, subd. (a)), and being under the
influence of methamphetamine (count 4/Health & Saf. Code, § 11550, subd. (a)). Counts
1 and 2 also alleged a prior conviction enhancement (Health & Saf. Code, § 11370.2,
subd. (c)) and the information alleged a prior prison term enhancement (Pen. Code, §
667.5, sub. (b)) and that Silveira had a prior conviction within the meaning of the three
strikes law.
       On September 25, 2012, Silveira pled no contest to the transportation charge and
admitted the three strikes allegation in exchange for dismissal of the remaining counts




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and allegations in the instant case, dismissal of three unrelated cases, and a stipulated
prison term of six years.
       On October 24, 2012, the court sentenced Silveira to the stipulated six-year prison
term: the middle term of three years on Silveira’s transportation conviction, doubled
because of his prior strike conviction.
       Silveira’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (Wende, supra, 25 Cal.3d 436.) Silveira has not responded to this court’s
invitation to submit additional briefing. However, our review of the record disclosed that
the court erred by its failure to impose a parole revocation fine.
       Penal Code section 1202.45, provides in pertinent part:

              “(a) In every case where a person is convicted of a crime and his or
       her sentence includes a period of parole, the court shall, at the time of
       imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
       assess an additional parole revocation restitution fine in the same amount as
       that imposed pursuant to subdivision (b) of Section 1202.4.

             “(c) The fines imposed pursuant to subdivision[] (a) ... shall be
       suspended unless the person’s parole ... is revoked.” (Italics added.)
       Although the trial court imposed a $1,440 restitution fine, it did not impose a
parole revocation fine in the same amount as required by Penal Code section 1202.45.
Therefore, we will modify the judgment to include a $1,440 parole revocation fine.
       Further, following an independent review of the record we find that no other
reasonably arguable factual or legal issues exist.
                                      DISPOSITION
       The judgment is modified to include a parole revocation fine, pursuant to Penal
Code section 1202.45, in the amount of $1,440. The trial court is directed to prepare an
amended abstract of judgment consistent with this opinion and to forward a certified copy
to the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.

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