Opinion
D058843 D060179
01-06-2012
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE HOLLOWAY, Defendant and Appellant. In re DWAYNE HOLLOWAY on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County
Super. Ct. No. SCD230747)
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge, and petition for writ of habeas corpus. Judgment affirmed; petition denied.
Dwayne Holloway entered a negotiated guilty plea to possessing a controlled substance for sale (Health & Saf. Code, § 11378). The court imposed a stipulated 16-month lower term prison sentence. Holloway appeals and has filed a petition for writ of habeas corpus. We affirm the judgment and deny the petition.
BACKGROUND
Holloway possessed a controlled substance for sale.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel lists as possible, but not arguable, issues: (1) whether there was a sufficient factual basis for the plea; (2) whether Holloway was properly advised of the consequences of pleading guilty and of his constitutional rights and whether he waived those rights before pleading guilty; and (3) whether the guilty plea is constitutionally valid.
We granted Holloway permission to file a brief on his own behalf. He has filed a supplemental brief in which he contends the court had a duty to consider his request for involuntary substance abuse treatment for his addiction. In his petition for writ of habeas corpus Holloway contends appointed appellate counsel is ineffective because she filed the Wende brief. Holloway requests the appointment of a different appellate attorney.
During plea negotiations, Holloway requested substance abuse treatment in lieu of a prison sentence. The prosecutor declined to offer substance abuse treatment as part of the plea bargain. At the change of plea hearing, Holloway repeated his request and the prosecutor again declined. Holloway then asked that his plea be pursuant to People v. West (1970) 3 Cal.3d 595. The prosecutor declined that request. Holloway then agreed to the prosecutor's offer of a stipulated 16-month lower term prison sentence for possessing a controlled substance for sale, as a lesser included offense of selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)), with dismissal of the balance of the information. Because Holloway did not obtain a certificate of probable cause, he is precluded from appealing the court's failure to consider his request for substance abuse treatment. (Pen. Code, § 1237.5.) Furthermore, the court did not have a duty to consider the request.
The information included enhancements pursuant to Health and Safety Code section 11370.2, subdivision (a); probation denial allegations (Pen. Code, §§ 1203, subd. (e)(4), 1203.07, subd (a)(11)); four prior prison terms (Pen. Code, § 667.5, subd. (b)); and a strike (Pen. Code, § 667, subds. (b)-(i)).
Holloway has not shown that appellate counsel was ineffective, that is, that counsel failed to act in a manner expected of a reasonably competent attorney or that Holloway was prejudiced by the filing of the Wende brief. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Thus, Holloway's petition for writ of habeas corpus must be denied.
A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Holloway has been competently represented by counsel on this appeal.
DISPOSITION
Holloway's request for substitution of appointed appellate counsel is denied. The judgment is affirmed. The petition for writ of habeas corpus is denied.
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ARON, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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McINTYRE, J.