Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB700338, William Jefferson Powell IV, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J
Defendant appeals from the prison term imposed pursuant to a plea bargain with a stipulated sentence.
BACKGROUND
Lucio Reyes (defendant) was charged with evading a police officer with willful disregard for the safety of others. (Veh. Code, § 2800.2, subd. (a).) The complaint also alleged he had been convicted previously of two serious felonies, within the meaning of the Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and has three felony convictions for which he had served prison terms. (§ 667.5, subd. (b).) The two alleged strikes, which were also alleged as prison priors, related to separate convictions for violations of section 245, subdivision (a)(1), without further description.
All further statutory references are to the Penal Code unless otherwise indicated.
On August 9, 2007, defendant “pled to the sheet,” pleading guilty to the charge, and admitting one strike, as well as the three prison priors. The plea agreement included a stipulated sentence of nine years in state prison, dismissal of the remaining allegations, and a provision that the sentence would be served concurrently to any other sentence. The court sentenced defendant in accordance with the plea agreement. The upper term of three years was selected for the base term, which was doubled because of the Strike. Three additional years were imposed, one each for the three prison priors, for a total term of nine years in state prison.
Defendant appealed from the sentence on August 27, 2007.
DISCUSSION
At his request, this court appointed counsel to represent defendant 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. 1386, 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.4th106, we have conducted an independent review of the record.
Because the sentence was an integral part of the plea agreement, a challenge to the sentence is a challenge to the guilty plea, which requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 84.) Defendant did not obtain a certificate of probable cause, such as would allow him to challenge the validity of his plea agreement. (§ 1237.5.)
We note that in taking the plea, the court referred to the prior conviction as “assault with a deadly weapon,” although the complaint only refers to the prior conviction by statute number, and no evidence of the prior conviction was introduced in the lower court. Section 245, subdivision (a)(1), is not necessarily a Strike, within the meaning of section 1192.7, subdivision (c), unless it specifically refers to a conviction for assault with a deadly weapon, as opposed to assault by means likely to produce great bodily injury. The latter type of aggravated assault is not a strike unless the prosecution properly pleads and proves the defendant personally inflicted great bodily injury. (People v. Leng (1999) 71 Cal.App.4th 1, 9.) However, where prior conviction is described on the abstract of judgment as one relating to “assault with a deadly weapon,” it does constitute a serious felony within the meaning of the Strikes law. (People v. Delgado (May 29, 2008, S141282) ___Cal.4th___ [2008 Cal. Lexis 6636; 2008 D.A.R. 7832].)
Although the complaint did not describe the nature of the prior conviction, during the oral proceedings in which the defendant entered his plea, the court referred to the prior conviction as being a conviction of assault with a deadly weapon, and the defendant admitted the allegation thus described. Because defendant admitted the assault related to an assault with a deadly weapon, he was properly sentenced for a Strike.
We have conducted an independent review of the record and find no arguable issues. Appellant was effectively represented by counsel in the trial court as well as on appeal.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., KING J.