People v. Petty

         NOT TO BE PUBLISHED

         APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD203738 Kerry Wells, Judge. Affirmed and remanded with directions.

         O'ROURKE, J.

         A jury found Tammy Petty guilty of selling cocaine base (Health & Saf. Code, § 11352, subd. (a), Pen. Code, § 1203.073, subd. (b)(7)) (count 1) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5) (count 2). In a bifurcated hearing, Petty admitted probation denial priors (Pen. Code, §§ 1203, subd. (e)(4)), 1203.07, subd. (a)(11)), three prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)) as to each count, and a prior prison term (§§ 667.5, subd. (b), 668). The court struck the Health and Safety Code, section 11370.2, subdivision (a) enhancements and sentenced her to six years in prison: the five-year upper term on count 1, a stayed term on count 2, and one year for the prison prior. Petty appeals. We affirm.

         BACKGROUND

         On January 2, 2007, an undercover police officer showed Tanya Mason a prerecorded $20 bill and asked if anyone was "working," which meant "selling narcotics." Mason took the officer to Petty. Mason said to Petty, "20, 20," slang for $20 worth of cocaine base, and the officer showed Petty the $20 bill. Petty grabbed the $20 bill and took an off-white plastic bindle containing off-white rocks from her jacket pocket. She unrolled the bindle and gave the officer one of the rocks, which turned out to be 0.17 grams of cocaine base. An unidentified man approached Petty with money in his hand and said, "I only have a 10." Petty responded, "20, I only have 20s." A search incident to arrest revealed a torn piece of white plastic in Petty's jacket.

         DISCUSSION

         Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, she lists, as possible but not arguable issues, (1) whether the upper term sentence violates Petty's rights under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct 856]; (2) whether the trial court erred by refusing to instruct the jury on the lesser offense of simple possession; (3) whether it erred by granting the People's motion in limine to impeach Petty with her three prior Health and Safety Code section 11352 convictions and her 1998 welfare fraud conviction; (4) whether it erred by granting the People's motion in limine to allow Mason's statement "20, 20"; and (5) whether it erred by admitting into evidence photographs of the scene taken just before trial but well after Petty's arrest.

         We granted Petty permission to file a brief on her own behalf. She has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Petty has been competently represented by counsel on this appeal.

         DISPOSITION

         The judgment is affirmed. The case is remanded to the trial court so that it may correct the abstract of judgment to delete the references to the Health and Safety Code, section 11370.2, subdivision (a) enhancements as to count 2. The court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.

         WE CONCUR:

         McCONNELL, P. J., McINTYRE, J.