Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026142
BUTZ, J.Defendant Gregory Brown entered a negotiated no contest plea to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and resisting or obstructing an officer, a misdemeanor (Pen. Code, § 148, subd. (a)(1)) in exchange for dismissal of a prior prison term (id., § 667.5, subd. (b)) and a count charging misdemeanor petty theft of lost property (id., § 485) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
Undesignated statutory references are to the Penal Code.
Relying solely upon defendant’s “prior felony record,” the court sentenced defendant to state prison for the upper term of three years for the possession offense and a concurrent term of one year for the resisting offense.
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, arguing (1) the trial court contravened Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) in imposing the upper term and (2) he was “mistreated” by the police department and “misrepresented” by his attorney in that the cocaine base was not found until the third search at the jail.
Other than facts related to a defendant’s prior criminal record, any fact used to increase a defendant’s sentence beyond the middle term is subject to a jury trial and proof beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 869]; People v. Black (2007) 41 Cal.4th 799, 809-810, 818-820.) No Cunningham error occurred because the trial court relied solely upon defendant’s “prior felony record.” Defendant has three felony convictions for possession of cocaine base for sale, three felony convictions for possession of a controlled substance, four prior prison commitments and at least seven parole violations. We find no Cunningham error.
Defendant’s challenge to his treatment and representation focuses on the search that revealed the cocaine base. Defense counsel did not file a motion to suppress the evidence. (§ 1538.5.) The challenge to the search is not preserved for review on appeal. (§ 1538.5, subd. (m); Cal. Rules of Court, rule 8.304 (b)(4)(A).) Defendant failed to obtain a certificate of probable cause to challenge counsel’s omission. (§ 1237.5.) In any event, where the record on appeal sheds no light on counsel’s omission or where counsel was not asked to explain, we affirm the judgment. (Cf. People v. Pope (1979) 23 Cal.3d 412, 426.)
Here, defendant stipulated to a factual basis for his plea and that the court could consider the facts from the probation report and police report. The probation report recounts the facts from the police report. About 6:46 p.m. on November 23, 2006, while investigating a noise complaint at an apartment, a Chico police officer saw defendant walking away from an apartment and questioned him. Defendant admitted he was on active parole. Noting that defendant was manipulating an object in his pants pocket, the officer began a pat-down for weapons but defendant fled. Defendant was eventually caught and transported to the police station for booking. A search revealed 0.3 grams of cocaine base wrapped in plastic in defendant’s sweatshirt pocket and a social security card belonging to someone else in defendant’s wallet.
The facts in the record on appeal do not establish that defendant was mistreated by the police department or that he received ineffective assistance of counsel (Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218).
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., MORRISON, J.