P. v. Evans
Filed 12/30/08 P. v. Evans CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. EDWARD LIONEL EVANS, Defendant and Appellant. | E046285 (Super.Ct.No. FVA701747) OPINION |
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant, represented by counsel, pled nolo contendere to transportation of cocaine base and admitted the attached gang enhancement allegation. Defendant also admitted that he had sustained one prior strike conviction. In return, the remaining counts and allegations were dismissed, and defendant was promised and received a prison term of 11 years in state prison. Defendant appeals from the judgment, challenging the validity of the plea agreement and the representation he received.
I
FACTUAL AND PROCEDURAL BACKGROUND[1]
In October 2007, a Rialto Police Department officer initiated a traffic stop on a vehicle defendant was driving based on improper dark tinting in violation of the Vehicle Code. Defendant exited the vehicle holding two cellular telephones in one hand and a digital scale in the other. The officer collected the digital scale and conducted a patdown search of defendant. When asked about gang affiliation, defendant named a gang to he belonged; the officer also observed tattoos referencing the gangs name on defendants body. A consent search of the vehicle uncovered five off-white, rock-like substances, which tested positive for cocaine base. The drugs were packaged equally in $20 bags.
Following the preliminary hearing, on December 27, 2007, an information was filed charging defendant with transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)) (count 1) for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)); and possession of cocaine base for sale (Health & Saf. Code, 11351.5) (count 2) for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)). The information also alleged that defendant had suffered a prior strike conviction. (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On April 25, 2008, the trial court heard and denied defendants Pitchess[2]motion and his motion to suppress made pursuant to Penal Code section 1538.5.
On June 13, 2008, defendant pled nolo contendere to count 1 and admitted the attached gang enhancement allegation and the prior strike conviction. In return for his plea, it was agreed that all remaining counts and allegations would be dismissed, and defendant would receive a stipulated prison term of 11 years, consisting of eight years on count 1 (the middle term of four years doubled due to the prior strike), plus three years for the gang enhancement allegation. As part of his plea, defendant waived any right to appeal from any motion [he] may have brought or could bring and from the conviction and judgment in [his] case since [he is] getting the benefit of [his] plea bargain. His trial counsel specifically did not join in this waiver. Defendant requested immediate sentencing and was sentenced in accordance with his plea agreement.
On July 23, 2008, defendant filed a notice of appeal based on the sentence or other matters occurring after the plea.
II
DISCUSSION
After defendant appealed and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental letter brief filed December 10, 2008, defendant appears to claim that his Pitchess motion and motion to suppress were improperly denied due to conflicting reports filed by the officers, and his trial counsel failed to inform him that he waived his right to appeal by pleading nolo contendere.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
The record shows defendant was adequately advised of the rights being waived and the consequences of his plea. On the change of plea form, defendant initialed the paragraph setting forth the waiver of his right to appeal from any motion and from the conviction and judgment, but counsel specifically noted that he did not join in that waiver. Hence, it appears that defendant was advised of his right to appeal and chose to waive that right against his counsels advice. Further, the plea agreement reflects defendant had sufficient time to consult with his attorney concerning the case. In open court, defendant admitted that he understood all of his rights, that he was aware of the consequences of pleading guilty, that he had had sufficient time to consult his attorney, that his attorney had explained everything on the plea form to him, and that he had sufficient time to consider the meaning of each statement in the plea form. In fact, defendant had no questions or hesitations during the taking of the plea.
We reject defendants claim that trial counsel was ineffective for allegedly failing to inform him that he would be waiving his right to appeal by pleading nolo contendere. There is no evidence in this record to support such a showing. We find no statutory or constitutional violation of the right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 698 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
Moreover, defendants waiver of his right to appeal and his failure to obtain a certificate of probable cause foreclose his contentions. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Panizzon (1996) 13 Cal.4th 68, 86.)
Furthermore, our independent review of the record reveals that defendants suppression motion was properly denied. (See, e.g., People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 [officer may stop a vehicle based on a reasonable suspicion that the vehicle code law has been violated]; Florida v. Jimeno (1991) 500 U.S. 248, 251 [111 S.Ct. 1801, 114 L.Ed.2d 297] [when owner consents to a search of his vehicle, the owner has consented to a search of all items that would reasonably fall within the scope of his consent]; Florida v. Bostick (1991) 501 U.S. 429, 435 [111 S.Ct. 2382, 115 L.Ed.2d 389] [officers can ask questions of individuals, even though they have no basis for suspicion, as long as [they] do not convey a message that compliance with their requests is required].)
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
McKINSTER
J.
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[1] The factual background is taken from the preliminary hearing transcript, which the parties stipulated would provide a factual basis for the plea of nolo contendere.
