P. v. Knott

Filed 1/11/08 P. v. Knott CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Allen J. Webster, Jr., Judge. Affirmed.

David Knott, Jr., in pro. per.; and Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

______________________

Defendant and appellant David Knott, Jr. appeals from the judgment entered following his plea of no contest to the charge of possession of a controlled substance. Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information filed on September 19, 2006, charged defendant with possession of cocaine (Health & Saf. Code,  11350, subd. (a)); it further alleged five prior conviction enhancements pursuant to section 667.5, subdivision (b) and one pursuant to the Three Strikes law (Pen. Code,  667, subds. (b)-(i), 1170.12, subds. (a)-(d)).[1]

On November 28, 2006, defendant appeared before the Honorable Allen J. Webster, Jr. and entered a plea of no contest to the possession charge. Although the appellate record does not include a reporters transcript of the proceedings, the minute order reflects that, before defendant entered his plea, he was advised of the consequences of his plea, including the maximum penalty. Next, after his motion to substitute new counsel was denied (People v. Marsden (1970) 2 Cal.3d 118), defendant admitted the Three Strikes prior. He was thereafter sentenced to 32 months in prison comprised of the 16-month low term doubled pursuant to Three Strikes.[2]

On March 19, 2007, defendant in propria persona filed a motion for modification of his sentence pursuant to section 1170, subdivision (d). Specifically, the motion sought relief from the Three Strikes enhancement on the grounds that defendant was denied due process when upon my request of the courts for a strike hearing to strike the strike in pursuant to (P.C 1170.12, P.C 1170(d) and P.C 1385. On March 22, 2007, Judge Webster denied the motion because defendant was sentenced pursuant to plea negotiations.

On April 11, 2007, defendant filed a notice of appeal from the sentence imposed on November 28, 2006 and the March 13, 2007 order denying his request for sentence modification.[3] On May 4, 2007, Judge Webster denied the appeal on the grounds that the sentence was the result of a plea bargain.

We appointed counsel to represent defendant on this appeal. After examination of the record, appointed counsel filed an opening brief which did not raise any arguable issues and which requested that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436.

On August 22, 2007, we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On September 10, 2007, defendant filed a letter brief in which he requested that we replace his appointed appellate counsel because appointed counsel had advised defendant that defendants challenge to the judgment was without merit. In addition to requesting new counsel, defendants letter reiterated the arguments he made in his motion for modification of sentence and his appeal to the Superior Court.[4] As we understand defendants contention, it is that the trial court abused its discretion on November 28, 2006, when it did not strike the Three Strikes prior. Notably, defendant does not dispute that he received the benefit of his plea bargain; he does not deny that his admission of the Three Strikes prior was a condition of that bargain and he does not quarrel with the adequacy of the preplea advisements of the penal consequences of that admission. Accordingly, defendant has not shown how the trial court abused its discretion by imposing a sentence consistent with defendants plea bargain, or how defendants due process rights were denied as a result of that bargain.

We have examined the entire record and are satisfied that appointed counsel has fully complied with his responsibilities and that no arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

EGERTON, J.*

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[1] All undesignated statutory references are to the Penal Code.

[2] We brought the absence of a reporters transcript to the attention of counsel with the admonition that it was counsels duty to review the record for completeness and make timely request for the addition of omitted material. No such request was made.

[3] Although an appeal following a no contest plea generally requires a certificate of probable cause, there is an exception where, as here, the notice of appeal indicates that it is based on the sentence or other matters occurring after the plea. (See Cal. Rules of Court, rule 8.304(b)(4)(B) [certificate of probable cause not necessary if notice of appeal states that the appeal is based on grounds that arose after entry of the plea and do not affect the pleas validity].)

[4] In a letter dated November 9, 2007, filed in this court on December 5, 2007, defendant further requested that section 2933.1 custody credit limitations be struck and that he be awarded 50 percent work incentive credits because the custody credit limitations set forth in section 2933.1 were not applicable to a sentence arising out of conviction of a nonviolent felony. In a letter dated December 23, 2007, defendant makes additional arguments regarding section 2933.1. But the judgment does not include any reference to section 2933.1. This issue may be more appropriately addressed by a petition for habeas corpus relief.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.