Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct.Nos. FSB700199 & FSB057542, Michael M. Dest, Judge.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
In case number FSB700199, defendant pled guilty to two counts of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and admitted as to both that he committed the crimes to benefit a street gang (Pen. Code, § 186.22, subd. (b)(1)). He also admitted having suffered a strike prior (Pen. Code, § 667, subds. (b)-(i)) and a serious felony prior (Pen. Code, § 667, subd. (a)(1)). As part of his plea bargain, the second sales conviction, its attendant gang enhancement finding and the serious prior conviction enhancement finding were dismissed and defendant was sentenced to the agreed-to term of 10 years in prison. In case number FSB057542, defendant pled guilty to being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) and he admitted having suffered a strike prior and a prior conviction for which he served a prison term (Pen. Code, § 667.5, subd. (b)). As part of his plea bargain, the strike prior and prison prior findings were dismissed and defendant was sentenced to a term of three years, to run concurrently with his 10 year sentence in case number FSB700191. As to both cases, defendant waived his right to appeal and his request for a certificate of probable cause was denied by the trial court.
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 this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which has been read and considered.
After concluding our independent review of the record, we affirm the judgment, while directing the trial court to make additions to and corrections of the abstract of judgment for case number FSB057542.
Facts
As to case number FSB700199, the trial court took the factual basis for defendant’s plea from either the complaint and/or the police report. The police report is not part of the record before this court. The complaint alleges that on July 13, 2005, defendant unlawfully transported, imported into California, sold, furnished, administered and gave away and offered to transport, import into California, sell, furnish, administer and give away, and attempt to import into California and transport cocaine base.
As to case number FSB057542, the trial court took as the factual basis for defendant’s plea either the Information and/or the transcript of the preliminary hearing and/or the police report. The police report is not part of the record before this court. Evidence at the preliminary hearing showed that on August 12, 2006, a police officer, who had stopped defendant’s rented car for an equipment violation, found a loaded semiautomatic handgun behind a small removable vent.
Discussion
In case number FSB700199, defendant was charged only with two counts of violating Health and Safety Code section 11352, subdivision (a), and with doing so to benefit a street gang. Defendant’s preprinted change of plea form states, “My attorney explained to me other possible consequences of this plea and any admission of any enhancement(s) . . . may be . . . [¶] [i]ncreased punishment for future felonies [¶] [and s]erious/violent felony (strike)” to which was added in hand lettering, “2 additional strikes.” As already stated, although defendant pled guilty to both offenses and admitted both allegations, as part of his plea bargain, one of the convictions and its attendant allegation were dismissed, leaving defendant being sentenced for the remaining offense and allegation. If defendant was aware that his guilty plea and admissions constituted two strikes, logic dictates that he must have been aware that being sentenced for one such conviction and allegation and having the other conviction and allegation dismissed constituted one strike. Nothing that was said to defendant during the taking of the plea would have led him to believe otherwise. Therefore, there is no basis in the record before this court to support an assertion that defendant was unaware that he was pleading guilty to a “strike.”
Defendant’s admission of the gang allegation waived appellate counsel’s current claim that it should be stricken due to insufficient evidence. (In re Troy Z. (1992) 3 Cal.4th 1170, 1181.) So did his waiver of his right to appeal and his failure to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68.)
In his fourteen-page typed personal supplemental brief, defendant appears to be arguing that there was insufficient evidence he was a gang member, therefore, his attorney was incompetent for advising him to accept the plea bargain. Of course, defendant was not charged with being an active participant in a gang—he was charged only with committing violations of Health and Safety Code section 11352, subdivision (a) for the benefit of a street gang, which does not require him to be a gang member (Pen. Code, § 186.22, subd. (b)). To the extend defendant is arguing there is insufficient evidence he committed this offense for the benefit of a gang, he waived the matter by admitting the allegation.
We have now concluded our independent review of the record and find no arguable issues.
Disposition
The trial court is directed, as to the abstract of judgment for case number FSB057542, to mark the box that states that the three-year sentence imposed is concurrent, to place the “3” in the “Principal or Consecutive Time Imposed” column in parenthesis, indicating that it is a concurrent term, and to do the same following “Total Time Excluding County Jail Term.” The abstract currently suggests that defendant received a consecutive three-year term for this case, which is inaccurate. In all other respects, the judgments are affirmed.
We concur: RICHLI, J., MILLER, J.