Filed 7/3/13 P. v. Brennan CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent,

v. JAMES THOMAS BRENNAN, Defendant and Appellant. 2d Crim. No. B244380 (Super. Ct. No. BA394829) (Super. Ct. No. BA399400) (Los Angeles County) MODIFICATION OF OPINION [No Change in Judgment]

THE COURT: It is ordered that the opinion filed herein on June 25, 2012, be modified as follows: On the last line of the last paragraph on page 2, after the word s "he was" insert the

word "not" so the sent ence will then read: On September 18, 2012, appellant appear ed in court and argued that he was not given the opportunity to enter a drug treatment program. No change in judgment.

NOT FOR PUBLICATIONFiled 6/25/13 (unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent,

v. JAMES THOMAS BRENNAN, Defendant and Appellant. 2d Crim. No. B244380 (Super. Ct. No. BA394829) (Super. Ct. No. BA399400) (Los Angeles County)

James Thomas Brennan appeals from a September 18, 2012 order revoking probation and sentencing him to concurrent three-year stat e prison terms in case numbers

BA394829 and BA399400. In Case No. BA394829 appellant pl ed to guilty possession for sale of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted suffering two prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) 1 and three prior prison term enhancements (§ 667.5, subd. (b)). Pursuant to an March 15, 2012 open plea agreement, appellant was conditionally re leased to enroll and complete a one-year residential drug treatment program at the Los Angeles Transition Center (LATC). On April 18, 2012, the trial court issued a bench warrrant after it received a letter from LATC repor ting that appellant was terminated from the program. The trial court recalled the bench warrant on April 20, 2012, and ordered appellant to return to LATC and complete the one-yea r residential program.

1 All statutory references are to the Penal Code unless otherwise stated.2 On July 19, 2012, appellant was held to answer in case number BA399400 after he was arrested on new charges of po ssession of cocaine base (Health & Saf. Code, § 11350, subd. (a).) On Augu st 27, 2012, appellant ente red a nolo cont endre plea to possession of cocaine base, admitted sufferi ng two prior strike c onvictions (§§ 667, subds. (b)-(i); 1170. 12, subds. (a)-(d)) 2 and four prior prison term enhancements (§ 667.5, subd. (b)), and admitted that he was out on bail in case number BA394829 when he

committed the offense (§ 12022.1). Appellant waived his Arbuckle rights in both cases ( People v. Arbuckle (1978) 22 Cal.3d 749) and was conditionally released to en roll in and complete a oneyear treatment program at First to Serve. Appellant was ordered to return to court on August 27, 2013, for probation an d sentencing. The trial court stated that if appellant successfully completed the one-year residen tial treatment program, it would strike the prior strike enhancements in both cases, gr ant three years probation in both cases, and award credit for the time appellant was in th e treatment program. Appellant was warned that "[i]f you don't [complete the residential tr eatment program], it's an open plea, and I'm going to send you to prison."

The trial court ordered the sheriff to deliv er appellant to the First to Serve drug residential treatment program but appell ant was dropped off at the Homeless Health Care Center. On September 7, 2012, the tria l court approved appellant 's treatment at the Homeless Healthcare Center and ordered appella nt to return to court on October 16,

2012. On September 13 2012, motions were filed to revoke probation in Case Nos. BA394829 and BA399400 after appellant was charged in a third case with possession of methamphetamine (Case No. BA402534) On September 18, 2012, appellant app eared in court and argued that he was given the opportunity to ente r a residential drug treatmen t program. The trial court revoked probation in number BA 394829 and BA399400, found that appellant abandoned

2 All statutory references are to the Penal Code unless otherwise stated.3 the one-year residential drug treatment program , struck the prior strike enhancements in each case, and in each case, se ntenced appellant to three y ears state pris on and imposed and stayed the one-year enhancements on the prison prior enhancements (§ 667.5, subd. (b)). In each case, appellant was ordered to pay a $240 restitution fine (§ 1202.4, subd. (b)), a $240 parole revocation fine (§ 1202.45), a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)) a $40 cour t operations assessment (§ 1465.8), and a $30 conviction assessment. (Gov. Code, § 70373.) Th e third case, case number BA402534, was dismissed pursuant to section 1385. We appointed counsel to represent appe llant in this appeal. After counsel’s examination of the record, she filed an opening brief in whic h no issues were raised. On June 4, 2013, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. On June 17, 2013, appellant filed a supplemental letter brief, st ating among other things, that he was not provided the opportunity to participate in a residential treatment program and the trial court erred in revoking pr obation and sentencing appe llant to state prison.

We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with her respon sibilities and that no arguable issues exist. ( People v. Wende (1979) 25 Cal. 3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106, 126.) The judgments in Case Nos. BA39 9400 and BA394829 are affirmed.

NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.4 David M. Horwitz, Judge

Superior Court County of Los Angeles

________________ ______________

Marilyn Weiss Alper, under appoin tment by the Court of Appeal, for Defendant and Appellant.

No appearance fo r Respondent.