Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, David Wesley, Judge, Los Angeles County Super. Ct. No. BA291125.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, J.
Gerald C. Wade appeals from judgment entered following his no contest plea to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) He was sentenced to prison for four years, consisting of the middle term of two years doubled pursuant to the Three Strikes law. He did not request a certificate of probable cause.
In an information filed November 2, 2005, appellant was charged with one count of a violation of Health and Safety Code section 11352, subdivision (a), having suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law and having served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b)).
The record establishes that on September 30, 2005, Los Angeles Police Officer Alonzo Williams, working undercover, approached appellant and asked him “was anyone working . . . ?” Thereafter, Officer Williams gave appellant $20 and received four pieces of an off-white rock like substance. It was stipulated the substance, weighing .41 gram, contained cocaine base.
Appellant did not have the cocaine in his possession but walked some distance with Officer Williams to obtain it. The police report mentions that Officer Williams gave appellant an additional $5 because appellant had wanted him to “give him a piece of the rock.”
Appellant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 to replace appointed counsel was heard and denied. On that same date, his motion to proceed in propria persona was granted.
On January 6, 2006, appellant’s request to relinquish his pro. per. status was granted and the public defender was reappointed. On this same date, appellant’s request that he be evaluated for competency was granted and a Dr. Markman was appointed confidentially. The matter was continued for the evaluation. On January 26, 2006, an order for payment of doctor’s fees to Dr. Markman was signed by the court.
Dr. Markman’s report is not part of the appellate record. At no time during the proceedings was a doubt as to appellant’s mental competency declared.
Appellant’s Romero motion was heard and denied without prejudice.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
A second Marsden motion was heard and denied.
On April 14, 2006, appellant pled no contest to possession of a controlled substance and admitted that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law.
On April 21, 2006, appellant filed a motion to withdraw his plea claiming it was coerced in that he suffered from bipolar disorder and psychotic mood swings and did not have his medication at the time of his plea. He also claimed his plea was the result of intimidation by defense counsel. The trial court denied the motion finding there was nothing in the record indicating appellant was not rational and that appellant’s claim of intimidation was not supported by credible, independently corroborated objective evidence.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On January 2, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On January 25, 2007, pursuant to appellant’s request, he was given until March 3, 2007 to file a supplemental brief.
He, thereafter, filed a supplement brief asserting he was denied effective assistance of counsel, he had been incompetent to stand trial because he had been denied mental health medication and mental care, he was improperly not offered a drug diversion program, his plea was unknowingly and not freely made as a result of his diminished state, while incarcerated he was subjected to violence and threats of violence by sheriff deputies who beat him and exposed him to other inmates as a sex offender. He also questions how there could have been a count 3 in the amended information when he did not know there was a count 2 alleged against him. He claims he was illegally sentenced in violation of Cunningham v. California [(2007) 549 U.S. ___ [127 S.Ct. 856]] in that the trial court doubled his low term of two years pursuant to the Three Strikes law. He asserts the abstract of judgment reflects he is a second striker, his accrual of credits is erroneous and that his sentence is cruel and unusual punishment. He additionally asserts he was just pointing out who had cocaine with the hope of getting a rock for himself and that he was not a drug dealer. Appellant has attached medical records reflecting his medications and physical and mental ailments.
We have examined the entire record and are satisfied that no arguable issues exist. Having failed to obtain a certificate of probable cause, appellant’s appeal following his no contest plea is limited to issues relating to search and seizure and issues regarding proceedings held subsequent to his plea. (See People v. Buttram (2003) 30 Cal.4th 773, 780. Further, issues cognizable on appeal are confined to matters contained in the appellate record.
Having specifically agreed to the sentence imposed as part of his negotiated plea, he is foreclosed from challenging it. (People v. Buttram, supra, 30 Cal.4th 773, 776.) Additionally, without a certificate of probable cause, appellant is foreclosed from claiming his sentence constitutes cruel and unusual punishment. (See People v. Panizzon (1996) 13 Cal.4th 68, 79.) Contrary to appellant’s claim, the record indicates he was sentenced based on only one prior strike conviction that he admitted and not sentenced as though the instant offense were a second strike. Further, the record indicates that while appellant was convicted and sentenced on count 3, count 2 referred only to appellant’s codefendant and was not alleged against appellant. Regarding credits, pursuant to Penal Code sections 1170.12, subdivision (a)(5) and 667, subd. (c)(5), the total amount of credits appellant is entitled to upon his placement in state prison cannot exceed one-fifth of the total term of imprisonment imposed.
Appellant has failed to demonstrate ineffective assistance of counsel (see Strickland v. Washington (1984) 466 U.S. 668) or substantial evidence of incompetence. (See People v. Rogers (2006) 39 Cal.4th 826, 846.) Because appellant’s no contest plea admits every element of the charged offense, his claim of innocence is not cognizable. (See In re Chavez (2003) 30 Cal.4th 643, 649.)
Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P.J., SUZUKAWA, J.
On March 22, 2006, over appellant’s objection, case No. BA293704 was consolidated with this case. An amended information was filed adding a codefendant and adding a second charge of violating Health and Safety Code section 11352, subdivision (a) against the codefendant.
The information was thereafter amended by interlineation to add a violation of Health and Safety Code section 11350, subdivision (a) as count 3, the crime to which appellant pled. As part of the plea, the remaining charges and enhancement allegations against appellant were dismissed.