Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR026048, Edward P. Moffat, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
FACTS AND PROCEEDINGS
On July 24, 2007, appellant, Ricky Allen Bennett, was charged in an information with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count one), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), having a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b) through (i)), and a prior prison term enhancement (§ 667.5, subd. (b)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On January 24, 2007, appellant entered into a plea agreement admitting one count of felony possession of methamphetamine and two felony allegations that he possessed marijuana and possessed narcotics paraphernalia. The plea was based on allegations in a felony complaint. On April 6, 2007, however, the trial court rejected the conditional plea agreement.
On October 22, 2007, appellant executed a Declaration Regarding Guilty Plea form in which he acknowledged and waived his constitutional rights. Appellant was to admit count two and the prior serious felony conviction. Appellant would receive a sentence lid of 32 months. Appellant acknowledged that the factual basis for his plea was the police report. At the change of plea hearing on October 22, 2007, the trial court advised appellant of the consequences of his constitutional rights pursuant to Boykin/Tahl. The court advised appellant of the consequences of his plea. Appellant pled no contest to count two and admitted the prior serious felony conviction. Appellant further waived time for sentencing. The trial court later granted the prosecutor’s motion to dismiss the remaining allegations.
Officer Jeremy Harlow of the Madera Police Department testified that on August 10, 2006, he was in his marked patrol car when he saw appellant riding a bicycle on Fifth Street. Appellant failed to stop at a stop sign and Harlow activated his overhead lights and detained appellant. Because appellant had two outstanding misdemeanor warrants, Harlow arrested him and searched him incident to the arrest. During the search, Harlow found usable quantities of methamphetamine and marijuana as well as a glass smoking device.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On January 16, 2008, the trial court noted appellant had prior criminal convictions and poor performance on probation and parole. The court denied appellant’s request to dismiss the prior serious felony allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced appellant to the mitigated term of 16 months which it doubled to 32 months pursuant to the three strikes law. The court granted applicable custody credits and imposed a restitution fine. Appellant obtained a certificate of probable cause.
In 1993, appellant had felony convictions for grand theft and second degree robbery. In 1994, appellant was convicted of manufacturing, or attempting to manufacture, a weapon in prison. Appellant had six violations of his parole between 1999 and 2003. Appellant had misdemeanor convictions in 2005 and 2006, respectively, for resisting a peace officer and driving without a valid license. Appellant violated misdemeanor probation in 2006.
Appellant’s appointed appellate counsel has 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 appellant was advised he could file his own brief with this court. By letter dated August 12, 2008, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.