Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-505504
McGuiness, P.J.
Appellant Jeffrey Allen Boes pled no contest to two counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The trial court denied probation and sentenced appellant to five years in state prison. Appellant’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.
Factual and Procedural Background
In January 2007, the Santa Rosa Police Department conducted an investigation into a methamphetamine distribution operation allegedly run by appellant. On January 15, 2007, an undercover police detective called appellant and arranged for the purchase of one-quarter of an ounce of methamphetamine. Appellant directed the detective to meet him in a parking lot, where the detective purchased the methamphetamine from appellant.
Because the appeal is from a plea, and because appellant waived his right to a preliminary hearing, the statement of facts is taken largely from the probation report.
On January 23, 2007, the detective called appellant and asked to purchase one-half of an ounce of methamphetamine. Appellant told the detective he only had 1.7 grams of methamphetamine and that it was “crystal” instead of powder. The detective agreed to meet appellant at a fast food restaurant in Healdsburg. The parties completed their transaction in the restaurant’s parking lot, where the detective paid appellant $105 for 1.7 grams of methamphetamine. Later that same day, appellant called the detective and advised him he could get an ounce of “crystal” for $700.
On February 5, 2007, the detective called appellant again and asked to meet him. Appellant and the detective met that afternoon in a parking lot, where the detective attempted to purchase an ounce of methamphetamine. Appellant told the detective he could get an ounce of methamphetamine that day if the detective advanced $750. The detective refused to front the money and asked appellant how much methamphetamine he had on him. Appellant told the detective he had an “eight ball” and a “1/4.” Appellant showed the detective packages of methamphetamine inside his knit cap. The detective continued to negotiate with appellant and gave a verbal “bust signal.” Appellant was arrested without incident.
The record does not indicate whether the parties completed the transaction or what amount was paid for the methamphetamine on February 5, 2007, although the record does reflect that the “amount purchased” on that date had a total net weight of 6.66 grams.
When interviewed, appellant admitted he had been selling methamphetamine for the previous two months. He claimed he usually bought one ounce of methamphetamine at a time, broke it down, and sold it in one-half ounce or smaller quantities to make a profit. Appellant admitted to selling methamphetamine to the undercover detective on all three occasions. Analysis by the Department of Justice confirmed that the substances purchased from appellant on all three occasions were methamphetamine.
The Sonoma County District Attorney filed a felony complaint on February 7, 2007, charging appellant with three counts of selling methamphetamine, in violation of Health and Safety Code section 11379, subdivision (a). The district attorney alleged as a sentence enhancement that appellant had suffered a prior felony conviction for which he had served a prison term. (Pen. Code, § 667.5, subd. (b).) After appellant waived his right to a preliminary hearing, the district attorney filed an information on March 1, 2007, containing the same charges that appeared in the felony complaint. Appellant entered a plea of not guilty.
At a readiness conference on May 29, 2007, appellant changed his plea, agreeing to plead no contest to two counts of selling methamphetamine in exchange for a dismissal of the remaining charges in the information. Appellant completed and signed a written waiver form reflecting the terms of his plea. The court confirmed that appellant signed the waiver form, read it carefully, and discussed it with his attorney. Appellant acknowledged that his plea exposed him to a maximum term of five years in state prison and a maximum restitution fine of $10,000. Appellant also acknowledged that the consequences of his plea included a “[p]resumptive prison” term, increased penalties for future offenses, a requirement that he register as a narcotics offender, and a requirement that he provide a blood test and saliva sample. The waiver form included a “Blakely/Cunningham” waiver. The court explained to appellant that by agreeing to the Blakely/Cunningham waiver he would forgo his right to a jury trial on factors in aggravation relied upon to support an aggravated sentence. Appellant stated he had not been promised anything else in exchange for his plea other than “the chance of probation.” The court said it would “consider probation” when it received the probation report. The court found the plea to be voluntary and agreed to dismiss one count of selling methamphetamine along with the prison prior enhancement. The court found a factual basis for the plea based on the police reports.
Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]; Blakely v. Washington (2004) 542 U.S. 296.
The appellate record does not contain the police report although it is recited in the probation report.
At the sentencing hearing on June 26, 2007, appellant sought to be placed on probation, explaining to the court that although he had not done well in the past on probation, he knew he would do well and succeed on this occasion. His attorney stated that appellant had taken the initiative to address his substance abuse, explaining that appellant was ineligible for certain services because of the nature of his prior convictions and because he was on parole at the time of the current offenses.
The court declined to grant probation, stating that appellant “made conscious decisions to sell methamphetamine” and that he had prior opportunities to seek treatment. The court found no reasons that would allow it to place appellant on probation. The court imposed the upper term of four years on count one and added one consecutive year for count two (one-third of the mid-term of three years), for a total of five years in state prison. (See Health & Saf. Code, § 11379, subd. (a).) The court explained that it chose the upper term for the first count based on appellant’s “extensive” prior criminal record, his prior prison term, and his unsatisfactory performance on probation.
According to the probation report, appellant suffered numerous misdemeanor and felony convictions dating back to 1984, including convictions in 2002 and 2003 for felony indecent exposure (Pen. Code, § 314, subd. (1).).
In addition to the five-year prison sentence, the trial court imposed a $400 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $400 parole revocation fine (Pen. Code, § 1202.45) that it suspended unless parole is revoked. Appellant was required to pay a $20 court security fee, provide DNA, blood, and saliva samples pursuant to Penal Code section 296, and register as a narcotics offender under Health and Safety Code section 11590. Appellant was prohibited from owning, possessing, or controlling firearms or ammunition. The court awarded 212 total custody credits, composed of 142 actual days plus 70 days of conduct credits.
On July 2, 2007, appellant filed a hand-written letter complaining that he was “unfairly sentenced” and that he would like to appeal the decision. The court treated appellant’s letter as a notice of appeal. There is no indication in the record that appellant sought a certificate of probable cause.
Discussion
Appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so.
Although appellant did not file a supplemental brief, he did claim in his notice of appeal that he had been “unfairly sentenced.” He offers no factual or legal support for this contention. Our review of the record discloses no sentencing error that would justify modifying or reversing appellant’s sentence. At the time he entered his plea, appellant acknowledged he could be sentenced to prison for up to five years. He was promised the opportunity to be considered for probation but was not guaranteed probation in exchange for his plea. At the sentencing hearing, the court explained why it denied probation and imposed a prison term. The court imposed the upper term on one count of selling methamphetamine in part on the basis of appellant’s extensive record of prior convictions, which is sufficient to justify the aggravated term under People v. Black (2007) 41 Cal.4th 799, 818-820. And, although the court failed to recite separate reasons for imposing consecutive sentences (see Cal. Rules of Court, rule 4.406(b)(5)), appellant failed to object and thereby waived his right on appeal to claim error with respect to the court’s discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353.)
Having reviewed the entire record and considered the contention in appellant’s notice of appeal, we conclude there are no arguable issues that warrant further briefing.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.