Filed 4/17/13 P. v. Perez CA5
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE A. PEREZ,
Defendant and
Appellant.
F064389
(Super.
Ct. No. CRF36339)
THE COURT
name="_ftnref1" title="">*
APPEAL from a judgment of the
Superior Court of
County. Eric L. DuTemple, Judge.
Deborah Prucha, under appointment by
the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney
General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo
Pursuant to a plea agreement, on
November 7, 2011, appellant, Jose A. Perez, pled guilty to
sale (Health & Saf. Code, § 11378; count I) and possession of
oxycodone for purposes of sale (Health & Saf. Code, § 11351; count
II), and admitted allegations that he had suffered a “strikeâ€
prior felony conviction (Pen. Code, § 667.5, subd. (b)). On December 5, 2011, the court imposed the
stipulated sentence of eight years four months, consisting of three years on
count II and eight months on count I, each term doubled pursuant to the three
strikes law (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), for
a total of seven years four months on the substantive offenses, plus one year
on the prior prison term enhancement.
On February
8, 2012, appellant filed a notice of
appeal. By its order of July 6,
2012, this court deemed the notice of appeal timely filed. Insofar as the record reveals, appellant did
not request, and the court did not issue, a certificate of probable cause (Pen.
Code, § 1237.5).
Appellant’s appointed appellate
counsel has filed an opening brief
which summarizes the pertinent facts, with citations to the record, raises no
issues, and asks that this court independently review the record. (People
v. Wende (1979) 25 Cal.3d 436.)
Appellant, apparently in response to this court’s invitation to submit
supplemental briefing, has submitted a brief in which he argues that the court
erred by not advising him of the direct consequences of his plea. We affirm.
FACTS
The report
of the probation officer states that among the items found during a parole
search of appellant’s residence on August 10, 2011, were 15 individual packages
of methamphetamine, weighing a total of 7.24 grams, 65 oxycodone pills, a
digital scale, $954 in cash, and a cellular phone “containing conversations
related to the sales of narcotics.â€
DISCUSSION
Appellant
contends the court erred in failing to advise him, prior to taking his plea,
that because he had suffered a strike, his ability to earn in-prison conduct
credits would be limited to 20 percent of his total term of imprisonment (Pen.
Code, §§ 667, subd. (c)(5), 1170.12, subd. (a)(5)). However, because this argument is, in effect,
a challenge to the validity of appellant’s plea, and appellant did not obtain a
certificate of probable cause, he may
not raise this on appeal. (
1098-1099; People v. Panizzon (1996)
13 Cal.4th 68, 74-75.)
Following independent review of the
record, we have concluded that no reasonably
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before
Wiseman, Acting P.J., Levy, J., and Peña, J.
name="_ftn2" title="">[1] We
use the term “strike†as a synonym for “prior felony conviction†within the
meaning of the “three strikes†law (Pen. Code, §§ 667, subds. (b)-(i),
1170.12), i.e., a prior felony conviction or juvenile adjudication that
subjects a defendant to the increased punishment specified in the three strikes
law.
