1 Filed 11/5/14 P. v. Agers CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Placer)

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THE PEOPLE, Plaintiff and Respondent,

v. JASON MATTHEW AGERS, Defendant and Appellant. C075864 (Super. Ct. No . 62-118960)

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ). Having reviewed the r ecord as required by Wende , we shall affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 10 6, 110, 124.)2 After his motion to suppress evidence wa s denied, defendant Jason Matthew Agers pleaded no contest to possession of MDMA 1 for sale (Health & Saf. Code, § 11378— count one) and possession of marijuana for sale ( id ., § 11359—count two), and admitted a prior drug-related conviction ( id ., § 11370.2, subd. (b)) and a prior prison term (Pen. Code, § 667.5, subd. (b). 2 ) The parties stipulated to the following factual basis fo r defendant’s plea: “On or about August 5, 2012, in Placer County, the defendant was found to be in possession of a controlled substance, specifically MDMA . Law enforcement officers found approximately 780 MDMA pills as well as an additional 32 gr ams of MDMA. The officers also found over $3,000 in cash, and a qualified narcotic s expert would testify that the MDMA was possessed for the purposes of sa le. Officers also located approximately 20 grams of marijuana. Along with the ma rijuana and the cash, a qualified narcotics expert would testify that the marijuana was al so possessed for the pur poses of sale. [¶] The defendant also has a prior conviction fro m April 11, 2001, from [a] federal court for a violation of conspiracy to distribute MDMA . This qualifies as a prior pursuant to Health and Safety Code [secti on] 11370.2[, subdivision] (b ), but due to the defendant’s incarceration on that case, it qualifies as a prior prison term pursuant to Penal Code [section] 667.5[, subdivision] (b) for which he served time in a [fede ral] penal institution and has not been free from custody for more than five years.”

The trial court sentenced defendant to an aggregate term of four years four months, consisting of 16 months (the low term) on coun t one plus three years for the

1 MDMA stands for methylenedioxymeth amphetamine, sometimes referred to as “ecstasy.”
2 Undesignated statutory references are to the Penal Code.3 prior drug-related conviction, with a concu rrent 16-month (low te rm) sentence on count two. The court dismissed the prior pr ison term enhancement. (§ 1385.) The trial court ordered defendant’s aggreg ate term served as a “split” sentence, with two years in actual custody in the county jail and the remainder on mandatory supervision. (§ 1170, subd. (h)(5).) The court awarded defe ndant one day of presentence custody credit. The court orally imposed a res titution fine (§ 1202.4, subd. (b)) but stated
that it would reduce the amount from that recommended by probation because it was imposing a shorter sentence th an probation had calculated. 3 The court imposed an $80 court operations fee (§ 1465.8) and a $60 criminal conviction assessment (Gov. Code, § 70373). The court noted that it was not ordering a base fine, as recommended by probation. The court also st ated, without mentioning any ot her sums or statutes, “The court will impose all the penalties and assessme nts below.” The court noted that because it was reducing the sentence and restituti on fine recommended by probation, other penalties and assessments would ha ve to be recalculated. The original “Order of Imprisonment—Lo cal Jail” (hereafter order), filed on the date of sentencing, erroneously listed a $200 base fine (presumably under § 672), which the court specifically waived, a $1,500 restitution fine (§ 1 202.4, subd. (b)), an $80 court operations fee (§ 1465.8), and a $60 crim inal conviction assessment (Gov. Code, § 70373). The order also listed a number of “p enalty assessments,” none of which were specifically mentioned orally by the trial court.

3 The amount recommended by the probation re port (not stated orally by the trial court) was $2,880. According to the reporter’s tran script, the trial court stated, “Under the state restitution fund fine, I’ll reduce that $1,500 u nder [section] 1202.4.” Since the probation report recommended $2,880—not $1,500—the co urt’s remark as transcribed does not make sense. The restitution amount shown in the written order is $1,500. Thus, we presume the court actually said (and the tr anscript should read), “Under the state restitution fund fine, I’ll reduce that [ to ] $1,500 under [section] 120 2.4.” (Italics added to indicate omitted text.)4 On May 28, 2014, a second amended or der correctly listed only the following fines, penalties, and assessments: a $1,500 restitution fine (§ 1202.4. subd. (b)), an $80 court operations fee (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373). We appointed counsel to represent defenda nt on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. ( Wende , supra , 25 Cal.3d 436.) Defendant was advised by counsel of th e right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and
we have received no communication from defe ndant. Having undertaken an examination of the entire record, we find no arguable e rror that would result in a disposition more
favorable to defendant.

DISPOSITION The judgment (second amende d order) is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.