P. v. Bergman













Filed 10/18/10 P. v.
Bergman 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Shasta)

----








>

THE PEOPLE, Plaintiff and Respondent, v. WAYNE JEROME BERGMAN, Defendant and Appellant.

C064925 (Super. Ct. Nos. 09F5623, 10F1889)

This case comes
before us pursuant to People v. Wende (1979) 25 Cal.3d
436.

On March 5, 2010, in case
No. 09F5623, defendant Wayne Jerome Bergman pleaded guilty to possession of heroin (Health & Saf.
Code, § 11350, subd. (a); count 2) and maintenance of a place for selling
heroin (Health & Saf. Code, § 11366; count 3). He admitted having served three prior prison
terms. (Pen. Code, § 667.5, subd. (b).)[1] In exchange, three related counts and
enhancing allegations were dismissed.[2] The parties stipulated to a state prison term
of five years eight months.

On March 30, 2010, in case
No. 10F1889, defendant pleaded no contest to possession of heroin for sale
(Health & Saf. Code, § 11351; count 1) and admitted three prior narcotics
convictions (Health & Saf. Code, § 11370.2). He also pleaded guilty to misdemeanor battery
upon an officer. (§ 243, subd. (b);
count 4.) In exchange, four related
counts and enhancing allegations were dismissed. The parties stipulated to a state prison term
of 12 years concurrent with case No. 09F5623.


Defendant was
sentenced to state prison for the
stipulated terms and to county jail for time already served.

In case
No. 09F5623, defendant was awarded 39 days' custody credit and 38 days'
conduct credit.[3] He was ordered to pay a $200 restitution fine
(§ 1202.4, subd. (b)) plus an administrative fee, a $200 restitution fine
suspended unless parole is revoked (§ 1202.45), a $50 laboratory analysis
fee (Health & Saf. Code, § 11372.5, subd. (a)) plus penalty assessments,
a $30 court security fee (§ 1465.8), and a $30 court facilities assessment
(Gov. Code, § 70373).

In case
No. 10F1889, defendant was awarded 40 days' custody credit and 40 days'
conduct credit. He was ordered to pay a
$200 fine plus penalty assessments, a $200 restitution fine plus an
administrative fee, a $200 restitution fine suspended unless parole is revoked,
a $50 laboratory analysis fee plus penalty assessments, a $30 court security
fee, and a $30 court facilities assessment.


On May 3, 2010, defendant timely filed a
notice of appeal and requested a certificate
of probable cause, which was denied.
That same day, he filed a motion to withdraw his plea. Citing the pendency of the appeal, the trial
court declined to rule on the motion due to lack of jurisdiction.

We appointed counsel to represent defendant 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. (People
v. Wende, supra, 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief contending his trial
counsel coerced him into entering his plea.
The contention is barred by the denial of a certificate of probable
cause. (People v. >Mendez (1999) 19 Cal.4th 1084,
1098-1099; People >v. Panizzon
(1996) 13 Cal.4th 68, 74-75.)

Defendant claims
his trial counsel should have sought to disqualify the trial court judge due to
his participation in events involving defendant's family. Defendant previously raised this issue in his
request for a certificate of probable cause.
In denying the certificate on this ground, the trial court indicated
that it had no recollection or awareness of having participated in such events. The court invited defendant to submit further
information establishing its claimed participation, but evidently defendant did
not do so. On this record, no error or
ineffective assistance of counsel is shown.

Defendant contends
that as part of his plea agreement, unspecified â€