Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08903861. W. Kent Hamlin, Judge.
Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Gomes, A.P.J., Dawson, J., and Kane, J.
It was alleged in a first amended information filed September 18, 2008, as follows: Appellant Louis Thomas Amps committed transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1) and possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5; count 2); he had suffered three prior convictions of transportation of a controlled substance, in violation of Health and Safety Code section 11352 (Health & Saf. Code, § 11370.2, subd. (a)); and he had served three separate prison terms for prior felony convictions, within the meaning of Penal Code section 667.5, subdivision (b).
Further references to dates of events are to dates in 2008.
On July 21, appellant filed a notice of motion to suppress evidence (Pen. Code, § 1538.5). On August 4, following a hearing, which also served as a preliminary hearing, the court denied the suppression motion.
On October 2, appellant, pursuant to a plea agreement, pled no contest to count 2 and admitted all enhancement allegations. The terms of the plea agreement, as set forth in the “Felony Advisement, Waiver of Rights, and Plea Form” (plea waiver form) executed by appellant on October 2, included the following: a court-indicated sentence of seven years and “waiver of appellate rights” (unnecessary capitalization omitted). In open court on October 2, appellant confirmed, in response to questioning by the court, the terms of the plea agreement, including that he would receive a seven-year prison term and that he was “giving up any right to appeal any aspect of these court proceedings....”
On December 3, the court imposed a prison term of seven years, consisting of four years on the substantive offense and three years on one of the Health and Safety Code section 11370.2, subdivision (a) enhancements. The court struck the remaining enhancements. At the close of the sentencing hearing, the court asked appellant: “[A]s part of the plea agreement you gave up any right to appeal. You know, if there had been any error with respect to how your case was handled, you agree to that waiver?” Appellant answered, “Yes.”
On December 29, appellant filed a timely notice of appeal in which he made reference to a “certificate of appealability.” On December 29, the court, apparently interpreting that reference as a request for a certificate of probable cause (Pen. Code, § 1237.5), denied that request.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant, in response to this court’s invitation to submit supplemental briefing, has filed a letter brief in which he argues, as best we can determine, as follows: (1) witnesses lied at the hearing on his suppression motion, the court credited these witnesses and therefore the court erred in denying the suppression motion; (2) appellant’s trial counsel was constitutionally ineffective because she failed to challenge the false testimony; (3) appellant’s plea should be set aside because the judge lied to appellant, telling him that the sentence imposed would be 16 months, and that if appellant’s health worsened the judge would “amend” the sentence, which the court refused to do after appellant informed the court his health had, in fact, deteriorated; and (4) the seven-year term imposed was unduly harsh given the relatively small amount of drugs found in appellant’s possession. We will affirm.
FACTS
On June 7, 2008, at approximately 5:30 p.m., City of Fresno Police Officers Josh Alexander and Mark Sotelo were on patrol when they saw a white Honda automobile (the car) traveling north on Cedar Avenue in Fresno. Officer Alexander, who was driving, pulled in behind the car, at which point it abruptly pulled over to the curb and stopped. The police officers had not activated their vehicle’s lights or siren, nor had they made any “hand gestures.”
Except as otherwise indicated, our factual statement is taken from Officer Sotelo’s testimony at the combined preliminary hearing/suppression motion hearing.
Officer Alexander stopped, and he and Officer Sotelo got out of their police car and approached the car. Officer Alexander asked the driver, later identified as appellant, “if he could talk with them” and Officer Sotelo began speaking with the car’s lone passenger. In response to further questioning, appellant stated he was on parole “[f]or sales of narcotics.” Officer Alexander asked if the officers could conduct a parole search. Appellant said “Yes.” Appellant also stated the car was his.
Officer Sotelo searched the car. In the trunk, he found two prescription bottles, one of which contained 16 pieces of an “off-white rock-like substance.” After Officer Sotelo advised appellant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appellant stated the rock-like objects were for his personal use.
Scott Yamaguchi testified to the following. He is a “[c]ommunity service officer” with the Fresno Police Department. His duties include “presumptive drug analysis.” He weighed the rock-like objects found in appellant’s car and determined they weighed 2.4 grams. He conducted chemical tests of a sample taken from two of the objects. The test was “presumptively positive for cocaine base.”
DISCUSSION
The contentions appellant raises, set forth above, are not cognizable on appeal. As indicated above, appellant gave up his right to appeal “any aspect of [the] court proceedings” as part of his plea agreement. “Just as a defendant may affirmatively waive constitutional rights... so also may a defendant waive the right to appeal as part of the agreement.... [¶] To be enforceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary.” (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).) We have reviewed the record, in particular appellant’s plea waiver form and the transcript of the proceeding at which appellant entered his plea, and we are satisfied appellant’s waiver of his right to appeal was knowing, intelligent and voluntary. Therefore, by his plea agreement, appellant has forfeited his right to raise on appeal the claims he now seeks to raise.
Moreover, appellant’s challenge to the validity of his plea on the basis of the trial court’s purported lies is foreclosed for the additional reason that appellant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5; Panizzon, supra, 13 Cal.4th at pp. 74-76.)
We note also that the factual basis for this attack on his plea--appellant’s claim that the judge lied--finds no support in the record. Appellant claims that the judge’s lies appear in “the transcrip[t].” We have reviewed the entire record, including all reporter’s transcripts, and at no time did the court state appellant would receive a prison term of 16 months or promise to “amend” appellant’s sentence at some later point. Indeed, as indicated above, the record is clear that the court stated, and appellant confirmed, that the court would impose a prison term of seven years. Moreover, the only reference by the court to appellant’s health came at sentencing, when appellant stated that he had been hospitalized twice and that he may have cancer, and asked if he could “go to a hospital facility instead [of prison].” The court responded that the Department of Corrections and Rehabilitation is “favorably disposed” to granting requests for a “compassionate release” in “appropriate circumstances” and that appellant could “make such a request if the time comes.”
Appellant’s challenge to his sentence is also foreclosed by the absence of a certificate of probable cause. Here, where the sentence was an integral part of the plea agreement and the court imposed the sentence agreed upon, the attack on the sentence is, in essence, an attack on the plea, requiring a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 79 [“a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself”].)
Finally, separate and apart from appellant’s contentions discussed above, we have also conducted a review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436. Based on this review, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.