P. v. Miranda
Filed 6/12/08 P. v. Miranda 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ARMANDO MIRANDA, Defendant and Appellant. | E044610 (Super.Ct.No. FSB703440) O P I N I O N |
APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed.
Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
I. Factual and Procedural Summary
Defendant was charged in a felony complaint with the following five counts: (1) possession for sale of a controlled substance (Health & Saf. Code, 11378); possession of a controlled substance with a firearm (Health & Saf. Code, 11370.1, subd. (a)); possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)); receiving stolen property (Pen. Code, 496, subd. (a)); and possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)). The complaint includes two sentence enhancement allegations: (1) defendant was convicted of a prior conviction for possession of a controlled substance for purposes of Health and Safety Code section 11370.2, subdivision (b); and (2) defendant has five prison priors for purposes of Penal Code section 667.5, subdivision (b).
At the preliminary hearing, Deputy Sheriff Daniel Rosa testified to the following. On August 27, 2007, he met with Detective Patton at a residence in San Bernardino. Patton told Rosa that he had seen defendant toss two baggies of methamphetamine behind a washer at the rear of the residence. In a detached garage on the property, the deputies located 50 unused glass pipes, 37 unused marijuana pipes, six glass pipes with crystal residue, several cell phones, mail in Armando Mirandas name, two loaded handguns, miscellaneous notebooks with paperwork in them with pay/owe sheets, packaging material which included small zip lock baggies and sandwich baggies, four digital scales, several zip lock baggies containing suspected methamphetamine and a surveillance monitor which had two cameras that were located in the front of the residence. Based upon his training and prior experience in narcotics cases, Rosa opined that these items were consistent with the sale of methamphetamine.
One of the handguns was a loaded Glock .10 millimeter; the other was a loaded A-M-T .380 semi automatic handgun. The first was found under a pillow of a bed in the garage. The second in a toolbox at the entrance of a bedroom.
After informing defendant of his Miranda[1]rights, Rosa asked defendant about the handguns. Defendant said the guns were left there by unknown subjects. Defendant told Rosa that he was temporarily living in the garage with a codefendant. The codefendant told Rosa that the handguns belonged to defendant.
Defendant also told Rosa that he had been selling methamphetamine for some time, and pointed out several areas in a room where methamphetamine was found in individual packages.
During a recess from the preliminary hearing, a plea agreement was reached with defendant. Pursuant to the agreement, defendant pled guilty to count 1, for possession of a controlled substance for sale (Health & Saf. Code, 11378), and to count 2, for possession of a controlled substance with a firearm (Health & Saf. Code, 11370.1, subd. (a)).
The terms of the plea agreement are set forth in a written declaration by defendant made pursuant to Penal Code section 859a. It includes a stipulated specified sentence, which states (in handwriting on the preprinted form): 3 years state prison (aggravated term) on count #1 with 1 year (midterm 1/3) consecutive on count # 2 = 4 years state prison total[.] [] Cunningham waiver. (Capitalization omitted.) Defendant wrote his initials in a box next to this provision.
The declaration includes waivers of defendants right to jury trial and other rights. It further states: I have had sufficient time to consult with my attorney concerning my intent to plead guilty/no contest to the above charge(s) (and admit any prior conviction or enhancement). My lawyer has explained everything on this declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes. It further provides: I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.
The court examined defendant about the plea agreement in court. Defendant told the court that he placed his initials in boxes in the declaration after reading the correlated provisions and that he had enough time to go over the form with his attorney. He stated that he understood that he was giving up his constitutional rights to a jury trial, to confront witnesses, to have witnesses brought into court to testify on his behalf, and to remain silent. The court confirmed defendants understanding that he would be sentenced to the maximum sentence of three years in prison on count 1, plus one year on count 2, served consecutively. Defendant also confirmed that he has had sufficient time to discuss the case with his attorney as to any possible defenses, consequences, penalties, or punishments.
After questioning defendants counsel about the agreement, the court accepted the plea and found, among other facts, that defendant knowingly understood and intelligently waived his constitutional rights.
In accordance with the plea agreement, defendant was sentenced to the upper term of three years in prison on count 1, plus a consecutive one-year term (one-third of the midterm) on count 2.
Defendant filed a document, which we have construed as a notice of appeal, requesting relief based on the following grounds: (1) Ineffective Assistance: No Appeal was even filed in this case, etc. . . . . [] (2) Under Cunningham Law, which Applise [sic] to those that are over sentenced in court, for Crimes that should be given lower sentences.{CT 22}
It does not appear from our record that a certificate of probable cause, pursuant to Penal Code section 1237.5, was sought or obtained.
Counsel appointed to represent defendant on appeal has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. State of California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case and a summary of the facts, but no potential arguable issues. Counsel requested that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. We have now concluded our independent review of the record and find no arguable issues.
II. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Ramirez
P.J.
/s/ Hollenhorst
J.
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[1]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
