Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F17866
Premo, J.
Defendant John William Schueller was arrested by police investigating the report of a residential burglary that had been in progress when the resident returned home. The victim identified defendant from a photo lineup. Defendant was charged by information with one count of first degree burglary. (Pen. Code, § 459.) The information alleged that defendant had suffered one prior strike conviction (§ 667, subds. (b)-(i)) and one prior serious felony conviction (id., subd. (a)(1)), a first degree burglary in 1999. The information also alleged that defendant had served two prior prison terms. (§ 667.5, subd. (b).) The prosecutor later added a second count of grand theft. (§ 487, subd. (a).)
Unless otherwise specified, further section references are to the Penal Code.
Pursuant to a plea agreement, defendant pleaded no contest to the second count. The trial court dismissed the burglary count and struck the prior conviction allegations in the interests of justice. (§ 1385.) At sentencing on February 5, 2010, the trial court imposed the lower term of 16 months in state prison for the remaining count of grand theft. The trial court imposed fees and fines and awarded defendant 426 days of custody credit. Defendant had asked the trial court to award the additional conduct credits allowed by the then-newly enacted section 4019. Defendant recognized that under the new law, he would not be entitled to additional credits if he had a prior serious or violent felony conviction as defined by section 1192.7. (§ 4019, subd. (f).) He argued, however, that since the trial court had struck the prior conviction allegations contained in the information, he should be entitled to the additional credit. The trial court denied the motion, citing In re Varnell (2003)30 Cal.4th 1132, 1138.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.
Discussion
Defendant did not request a certificate of probable cause, and, therefore, the appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (§ 1237.5, subd. (a).) The certificate is not required when the notice of appeal states, as this one does, that it is based upon the sentence or other matters that arose after entry of the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b)(4).)
We have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436and People v. Kelly (2006) 40 Cal.4th 106, focusing upon the sentence and matters that arose after entry of the plea. Having done so, we can find no arguable issue for appeal.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.