P. v. Smith

Filed 5/14/08 P. v. Smith CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Counsel for defendant Stephen Ellis Smith has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has filed a letter brief. We have conducted the review requested by counsel, and have considered defendants letter brief and, finding no arguable issues, affirm the judgment.[1]

Background

Defendant was arrested on June 23, 2004. He had been approached by police who observed him getting into a vehicle with a beer. They determined he was on parole and conducted a parole search. They found 29 rocks of cocaine in defendants front pants pocket. On June 6, 2005, pursuant to a plea agreement, defendant pleaded no contest to charges of possession for sale of cocaine base (Health & Saf. Code, 11351.5) and possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)), and admitted to having suffered three prior convictions for purposes of the one-year enhancements of Penal Code section 667.5, subdivision (b). Defendant entered his plea on the understanding the district attorney would strike allegations of a prior conviction of a serious or violent felony, charged as a strike, and that he would be sentenced to a term of eight years eight months. Defendant further understood his sentence would be suspended and he would be placed on probation and would participate in a Category 1 residential treatment program. The court, accepting the plea, sentenced defendant to the aggravated term of five years on the conviction of possession of cocaine base for sale, a consecutive term of eight months as one-third the midterm of two years on the conviction of possession of cocaine and an additional one-year term for each of the prior convictions. The court also imposed a restitution fine of $1,000 and a parole revocation fine of $1,000 (suspended), but suspended execution of sentence and placed defendant on probation on the condition, among others, he refrain from using any illegal drugs and that he enter a Category 1 residential treatment program as directed by the probation department. As part of his plea, defendant agreed that should he fail to complete the program, he would waive any credits he had earned.

Defendant entered the program, but was discharged from it in April 2006. A short time later, defendant entered a different program which, although not a Category 1 program, was a parole-approved program. The probation department supported his action and the court therefore revoked defendants probation, but reinstated and modified it to allow him to participate in the new program.

On July 18, 2007, defendant was arrested for a violation of probation after he tested positive for methamphetamine. On July 31, 2007, defendant admitted to having used a prohibited substance. The court executed the sentence to which defendant had agreed, sentencing him to eight years eight months in state prison and imposing the restitution and parole revocation fines. After ascertaining defendant had in fact completed the second treatment program, the court awarded him 1,085 actual credits and 228 conduct credits.

Discussion

By pleading no contest to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, Penal Code section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant sought but did not obtain a certificate of probable cause. Similarly, by admitting to the probation violation, defendant is not now entitled to review of any issue that merely goes to the question of whether he did in fact violate his probation. In any event, there is no dispute that he used illegal substances, violating the condition of probation prohibiting him from using any illegal substance.

Defendant, in his letter brief, complains that his attorney and probation officer colluded against him by making up a story as to why he used illegal substances, lied by saying defendant was not working and lied by saying they were unaware defendant had permission to reside outside of Alameda County. The asserted lies or misrepresentations are irrelevant because defendants probation was revoked for his use of illegal substances.

The sentence imposed was that to which defendant had agreed as part of his plea bargain and was authorized by law. (See Health & Saf. Code, 11351.5 & 11350, subd. (a); Pen. Code, 18, 667.5, subd, (b) & 1170.1, subd, (a); Cal. Rules of Court, rule 4.435(b)(2).) The restitution and parole revocation fines were proper. (Pen. Code,  1202.4, subd. (b) & 1202.45.) Defendant, in his letter brief, contends his attorney lied to him by telling him he would be free. Defendant would have been free had he not violated a term of his probation. The plea form defendant signed clearly recites defendant understood the promise to suspend his sentence would not be binding if he violated any term of his probation.

Defendant complained in the trial court his attorney was ineffective because he did not inform defendant about the decision in Cunningham v. California (2007) 549 U.S. 270, claiming had he known of that case, he would have received a lower sentence. Cunningham was decided only after defendant entered his plea. Counsel therefore could not have been ineffective by failing to mention that case at the time of the plea agreement. In any event, defendants numerous prior convictions justified the selection of the upper term, meaning that the selection of that term raises no issues under Cunningham. (See People v. Black (2007) 41 Cal.4th 799, 812.)
Defendant, in his letter, complains he suffered from racial profiling because another inmate, of another ethnic background, who also failed to complete the Category 1 program, received a lesser sentence. Defendant was sentenced before he entered the Category 1 program. His sentence was based on the crimes he committed and, as indicated earlier, is exactly the sentence provided for by statute. He has made no showing of racial profiling.

In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.

The judgment is affirmed.

_________________________

STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

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[1] Defendant also has filed a petition for writ of habeas corpus (In re Smith, A120674), which we have denied by separate order filed this day.