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The People v. Robert Paul Milner

April 17, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT PAUL MILNER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F6232)

The opinion of the court was delivered by: Butz , J.

P. v. Milner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Shasta)

Defendant Robert Paul Milner pleaded no contest to possession of a controlled substance and admitted a prior strike in exchange for a stipulated sentence of 32 months in state prison that would increase to six years if he failed to appear for sentencing. He failed to appear and the trial court imposed the six-year sentence.

Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.

Defendant was charged by information with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)--count 1) and misdemeanor possession of a syringe without a permit (Bus. & Prof. Code, former § 4140 [repealed eff. Jan. 1, 2012]--count 2). The information alleged that defendant had suffered three prior convictions, including one conviction for corporal injury to a cohabitant with great bodily injury and two convictions for burglary, all of which qualified as strikes. (Pen. Code, §§ 273.5/12202.7, 459, 667, subds. (b)-(i), 1170.12.)*fn1

Preliminary Hearing

According to the evidence adduced at the preliminary hearing, in the early morning of August 7, 2010, Anderson Police Officer Tyler Finch observed and followed a vehicle that was traveling substantially over the speed limit. Defendant was driving, and had a passenger. The vehicle stopped in a parking lot and both occupants got out; Finch asked if he could speak to them. Finch observed that defendant had red, watery eyes. Finch asked if defendant had been drinking and conducted a brief DUI investigation of defendant. Defendant denied being on parole or probation or having outstanding warrants, but his passenger said he believed he might have misdemeanor warrants. Finch confirmed the warrants with dispatch and began to issue the passenger a citation. Finch also requested and received defendant's driver's license, which Finch held onto until after defendant was arrested. While Finch and defendant were conversing, three other officers and a sergeant arrived on the scene, each in a separate patrol car. Officer Stephen Harper asked defendant's consent to search the vehicle, which defendant gave. Officer Harper's K-9 partner detected a baggie of suspected methamphetamine in the passenger door and alerted to the center console, where the officers found needles and more suspected methamphetamine. Defendant was then arrested and taken into custody.

Motion to Suppress and Stipulated Sentence

After the trial court denied defendant's motion to suppress evidence (§ 1538.5), defendant pleaded no contest to count 1 and admitted the prior strike for corporal injury to a cohabitant with great bodily injury; the court dismissed count 2. Defendant's stipulated state prison term was 32 months, with the understanding that if he failed to appear for sentencing on June 16, 2011, the term would increase to six years.

Defendant failed to appear for sentencing on June 16, 2011.

On October 12, 2011, the trial court sentenced defendant to six years in prison (the upper term on count 1, doubled because of the strike). The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)); a suspended $200 restitution fine (id., § 1202.45); a $40 court security fee (id., § 1465.8, subd. (a)(1)); a $30 criminal conviction assessment (Gov. Code, § 70373); and a $190 laboratory fee (consisting of $50 pursuant to Health & Saf. Code, § 11372.5, subd. (a); $50 pursuant to Pen. Code, § 1464; $10 pursuant to Pen. Code, § 1465.7; $5 pursuant to Gov. Code, § 76104.6; $15 pursuant to Gov. Code, § 76104.7; $25 pursuant to Gov. Code, § 70372, subd. (a)(1); ...


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