Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 06CM2026. Lynn C. Atkinson, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., Kane, J.
INTRODUCTION
Appellant, Danny Almario, was charged in an amended information filed September 21, 2006, with possession of cocaine for sale (Health & Saf. Code, § 11351, count one), possession of methamphetamine for sale (Health & Saf. Code, § 11378, count two), and possession of marijuana for sale (Health & Saf. Code, § 11359, count three). The amended information further alleged Almario had four qualifying prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c) and that he was personally armed with a firearm when he committed counts one and two in violation of Penal Code section 12022, subdivision (c). A gun use enhancement pursuant to section 12022, subdivision (a)(1) was alleged as to count three.
Unless otherwise noted, all further statutory references are to the Penal Code.
On September 21, 2006, Almario entered into a plea agreement in which he pled no contest to counts two and three, as well as admitted three of the enhancements for prior drug convictions and the section 12022, subdivision (a)(1) firearm enhancement. In exchange for his plea, Almario would receive a stipulated sentence of 12 years and the unrelated action would be dismissed.
Under the plea agreement, Almario would receive the low term of 16 months on count two and a consecutive sentence of one-third the midterm on count three of eight months. Almario was to receive consecutive three-year terms for each prior drug conviction enhancement plus a consecutive term of one year for the personal possession of a gun enhancement.
The court advised Almario of the consequences of his plea, including payment of a restitution fine. The court advised Almario of his constitutional rights pursuant to Boykin/Tahl. Almario expressly waived each right in open court. As proof of Almario’s prior drug offense convictions, the prosecutor entered into evidence without objection certified copies of Almario’s section 969, subdivision (b) records.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Almario pled no contest to counts two and three and admitted the three prior drug conviction enhancements and the personal possession of a firearm enhancement pursuant to section 12021, subdivision (a)(1). The court granted the prosecutor’s motion to dismiss the remaining allegations. Almario waived statutory time for sentencing and the court granted the prosecutor’s motion to dismiss the unrelated action.
Almario also dropped a claim he had filed to prevent the forfeiture of a motorcycle.
The trial court sentenced Almario to the stipulated sentence of 12 years pursuant to the terms of the plea agreement. The court imposed a restitution fine of $2,400 and imposed other fines.
Almario’s appointed appellate counsel filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Almario was advised he could file his own brief with this court. By letter on May 17, 2007, we invited Almario to submit additional briefing. To date he has not done so.
FACTS
Investigator Darren Kraemer with the Kings County Sheriff’s Office was assigned to the Kings County Narcotics Task Force and on May 6, 2006, he executed a search warrant at Almario’s residence. In executing the warrant, Kraemer found 22.6 grams of methamphetamine, 684 grams of a cutting agent, 588 grams of marijuana, and six grams of cocaine. There were more than three scales, pay and owe sheets, packages, spoons, mixing bowls, and a ledger indicating Almario was dealing in narcotics. All these items indicated to Kraemer that Almario was engaged in the sale of narcotics.
Kraemer did not believe that the six grams of cocaine was for personal use because the Department of Justice recognizes that, depending on tolerance, an individual dose would be between .02 grams and .05 grams. Kraemer believed the presence of pay and owe sheets and packaging material indicated that the narcotics were possessed for sale. Tupperware and several plastic bags had narcotic residue on them. A .22 caliber handgun was found inside a tool box in the garage. Kraemer explained that those selling narcotics commonly possess guns because they deal with large amounts of money and face a threat of being robbed.
The value of the 20 grams of methamphetamine found was worth approximately $600 wholesale and would retail for about $2,000. From the Department of Justice guideline, 20 grams of methamphetamine would be about 400 dosage units based on an individual dose of .05 grams. Kraemer thought the methamphetamine was possessed for sale. The marijuana found was the equivalent of 1.29 pounds. Depending on the grade of marijuana, a pound could be worth between $400 and $6,000. Kraemer believed the marijuana was possessed for sale.
DISCUSSION
We initially note that Almario failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084 (Mendez); People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious or prejudicial errors in Almario’s change of plea hearing. Almario was fully advised of the consequences of his plea and his constitutional rights. The preliminary hearing transcript established a prima facie factual basis for the plea. Almario bargained for and received the stipulated sentence of 12 years.
The low term for count two is 16 months. The midterm for count three is two years -- one-third the midterm of two years is eight months. The sentence for the prior drug conviction enhancement is three years for each of those enhancements. The sentence for the gun enhancement is one year.
Finally, we note that Almario did not file a motion to quash or challenge the search warrant. Had he filed such a motion, it would have qualified as a noncertificated issue that does not require a certificate of probable cause. (Mendez, supra, 19 Cal.4th at p. 1088.) The search warrant affidavit was not included in the appellate record. Almario’s failure to file a suppression motion with the trial court leaves nothing to review on appeal concerning the validity of the search warrant. (See People v. Callahan (1997) 54 Cal.App.4th 1419, 1423.)
Almario’s trial counsel noted at a continuance hearing on September 6, 2006, that she was in the process of obtaining the search warrant affidavit. This is the only reference to the search warrant affidavit in the record.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.