Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FSB702192 & FSB56689, Ronald M. Christianson, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Johnny Fowler entered a guilty plea pursuant to a negotiated agreement on a current case involving possession-for-sale of drugs, and a revocation of his Proposition 36 probation on a prior case. He appeals the stipulated sentence as well as the legality of the proceedings leading to his guilty plea. We affirm.
BACKGROUND
On September 27, 2006, defendant pled guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), in case No. FSB056689, in return for probation under Proposition 36. (Pen. Code, § 1210.1.) The plea agreement included a waiver of the right to appeal from the conviction. On August 31, 2007, an information was filed in a new case, FSB702192, alleging possession of cocaine for sale (Health & Saf. Code, § 11350, subd. (a)) and possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) As to each count, it was further alleged defendant had previously been convicted twice of drug offenses (Health & Saf. Code, § 11370.2, subd. (a)), and that he had served five separate prison terms for prior felony convictions (prison priors). (Pen. Code, § 667.5, subd. (b).) The new charges resulted in a revocation of probation in the prior case.
On October 10, 2007, defendant entered into a negotiated plea bargain. Under the plea agreement, defendant pled guilty to all counts and enhancement allegations in the newer case, FSB702192. The agreement further provided he would receive a provisional sentence of 16 years 8 months at the time of the plea, and be released from custody on his own recognizance, subject to resentencing if he appeared as ordered and complied with special conditions of his release. Upon making his appearance at the sentencing hearing, defendant would be permitted to withdraw his plea of guilty for count 2, and withdraw his admission to one of the drug enhancements (Health & Saf. Code, § 11370.2, subd. (a)), and all of the prison priors.
Referred to as a “Vargas” waiver, per People v. Vargas (1990) 223 Cal.App.3d 1107.
Defendant complied with all the conditions of his own-recognizance release and appeared as ordered at the sentencing hearing. Although he initially informed the court he wished to withdraw his guilty plea, he subsequently advised the court he did not wish to withdraw the plea. On December 18, 2007, the court denied defendant’s request to continue the stay and imposed sentence. Defendant’s guilty plea to count 2 of FSB702192 was vacated, and his admission of one of the prior drug conviction enhancements, as well as all of the prison prior enhancements, were withdrawn. The court imposed the upper term of five years for count 1, with three years added for a prior drug conviction enhancement (Health & Saf. Code, § 11370.2, subd. (a)), for a total term of eight years on the later case, FSB702192. After revoking his probation in FSB056689, the court imposed a concurrent two-year term.
Defendant appealed, challenging both the sentence and the validity of the guilty plea. The court granted defendant’s request for a certificate of probable cause.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. 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 that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. The record shows appellant was adequately advised of the rights being waived and the consequences of pleading guilty in FSB702192, including the terms and consequences of the Vargas waiver. Defendant informed the court he had enough time to discuss the plea with his attorney and that he understood everything included in the change of plea form.
We do not need to determine whether the guilty plea in the earlier case was valid because defendant did not timely appeal following the entry of that plea.
In the handwritten letter which was attached to his notice of appeal, defendant states the trial court failed to keep the plea bargain. However, the record does not support this assertion. The court promised that if defendant appeared as ordered at the sentencing hearing, his sentence would be reduced based on an agreement to withdraw his plea to count 2 and vacate his admissions to the prison priors and one of the prior drug conviction enhancements. The record shows the court kept this promise, reducing defendant’s sentence by more than half at the sentencing hearing. Defendant also stated in the attachment to the notice of appeal that he was not represented by counsel in the superior court. This point is also unsupported by the record, which shows defendant was represented by counsel at all hearings and at all stages.
Finally, defendant’s Proposition 36 probation in case No. FSB056689 was properly revoked following defendant’s new conviction for possession for sale. (People v. Dove (2004) 124 Cal.App.4th 1, 6 [nonviolent drug possession offense, as defined in Proposition 36 excludes “the possession for sale” of any controlled substance.]
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P. J., Richli, J.