Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA069917. Antonio Barreto, Jr., Judge.
Mario Gallardo, in pro. per.; and Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CHANEY, J.
According to testimony at the preliminary hearing, the following events preceded the arrest of appellant Mario Gallardo. In October 2008, undercover police officers saw appellant sitting in the driver’s seat of a car in a Culver City motel parking lot. Another man entered the car and an exchange of some sort occurred, after which the other man left on foot. As the other man walked past one of the officers, the officer smelled marijuana and saw a large bulge in the man’s waistband. The officer stopped and searched the man, who was carrying a quarter pound of marijuana. The man confessed he had bought the marijuana from appellant for $740.
Meanwhile, another officer approached appellant, who was still sitting in the car in the parking lot. As he approached appellant, the officer could smell marijuana coming from the car. The officer searched appellant and found a small plastic bag with a white powdery substance resembling cocaine in appellant’s pant pocket. The officers also searched appellant’s car, where they found $820 in cash, two cell phones, a digital scale and a “pay-and-owe” sheet.
After obtaining a search warrant, officers searched appellant’s home, where they found 19 live marijuana plants under a high intensity light, approximately 300 unused plastic baggies, approximately 10 ounces of marijuana separated into three bags, a plastic bag containing cocaine, a plastic bag containing 22 Ecstasy pills (or MDMA), two LSD tabs and $6,500 in cash.
A five-count information charged appellant with (i) felony transportation or sale of marijuana in violation of Health and Safety Code section 11360, subdivision (a), (ii) felony possession of marijuana for sale in violation of Health and Safety Code section 11359, (iii) felony possession of a controlled substance (powder cocaine) for sale in violation of Health and Safety Code section 11351, (iv) felony possession of a controlled substance (MDMA) for sale in violation of Health and Safety Code section 11378, and (v) felony cultivating marijuana in violation of Health and Safety Code section 11358.
Before the information was filed in this case, appellant was sentenced to a two-year prison term in an unrelated case. His earliest possible release date in that unrelated case was January 9, 2010.
Initially, appellant pleaded not guilty to all counts. On that day, the trial court heard and denied appellant’s Marsden motion. Appellant later filed a Pitchess motion, which the trial court granted in part and determined disclosure was warranted for one matter. Later that same day, however, appellant pleaded no contest to count one (felony transportation or sale of marijuana) and the court dismissed the remaining counts. Finding appellant’s Pitchess motion had become moot, the court vacated its earlier ruling on that motion. At the sentencing hearing, appellant’s trial counsel stated she had read the entire plea agreement to appellant and had paraphrased the legalese. Appellant stated he understood what his attorney read to him. Similarly, by initialing the plea agreement, appellant indicated he understood the terms and consequences of his plea. As set forth in the plea agreement, the court sentenced defendant to two years in prison and awarded him 150 days credit. The court ordered appellant’s two year sentence to run concurrent with any other sentence.
Appellant appealed “based on the sentence or other matters occurring after the plea.” We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to review the record independently. On February 16, 2010, we advised appellant he personally had 30 days to submit any contentions or issues he wished us to consider.
At some point after filing his notice of appeal, appellant filed various motions with the trial court, including a motion to withdraw his plea and a petition for writ of habeas corpus, both of which appear to have been based on the same allegations he makes here. The trial court denied appellant’s motions and habeas petition.
Appellant filed two, essentially identical, supplemental briefs with various documents attached. Appellant argues his trial counsel was incompetent and lied to him about the plea agreement. He claims he “would have gone to Trial, confidently and trusted in the Jury and the Judicial System if this negative, violent, and wrongful ordeal had not been forced on Me.” Appellant requests that he be released from custody, his plea be withdrawn and his conviction be reversed.
To the extent appellant challenges his sentence, we affirm. The plea agreement states the court would sentence appellant to two years in state prison, which sentence would be served concurrent to any other sentences. The trial court imposed that sentence.
Nonetheless, appellant appears to argue he should have been released from prison before his two year sentence ended. At the time of sentencing in this case, appellant was serving an unrelated sentence, for which his earliest possible release date was January 9, 2010. The earliest possible release date for appellant’s two-year sentence in this case was May 1, 2010. Appellant seems to believe that, despite his May 1, 2010 release date in this case, he should have been released from prison in January 2010 because that was when his other sentence ended. “A concurrent term is one that begins on the day it is imposed and is not postponed until the completion of a prior term. Thus, a concurrent new term ‘overlaps’ the prior term to the extent service of the earlier sentence is not complete on the day the new term is imposed. ‘[S]entences may be concurrent, i.e., may run together, without either starting together or ending together. What is meant is that they run together during the time that the periods overlap.’ (In re Roberts (1953) 40 Cal.2d 745, 749, 255 P.2d 782.)” (People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3.) Accordingly, we reject appellant’s argument that he should have been released from prison when his earlier sentence ended.
To the extent appellant challenges the validity of his plea agreement, his appeal is dismissed. In his supplemental briefs, appellant claims his trial counsel lied to him, making him believe that, by entering the plea agreement, he would be out of jail in January 2010. He states he would have gone to trial had the plea agreement not been “forced” upon him. Before challenging the validity of a plea agreement on appeal, however, an appellant must obtain a certificate of probable cause from the trial court. (Pen. Code, § 1237.5.) “‘Whether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest.’ [citation.]” (People v. Brown (2010) 181 Cal.App.4th 356, 361, fn. omitted.) Because appellant has not obtained a certificate of probable cause, we dismiss his appeal to the extent it challenges the validity of his plea agreement. (Ibid.)
Penal Code section 1237.5 states that a defendant may not appeal “from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
We have also examined the entire record and are satisfied that appellant’s counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
Disposition
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.