Opinion
H036818
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. LUTHER JAMES COLLINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS102459)
Pursuant to a negotiated plea agreement, defendant Luther James Collins pleaded no contest to one count of transporting or selling narcotics (Health & Saf. Code, § 11352, subd. (a)) and admitted one prior strike offense (Pen. Code, § 1170.12, subd. (c)(2)). He was sentenced to the agreed-upon six years in prison. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf. Defendant has submitted a letter, which we have read and considered.
I. FACTS
On October 30, 2010, a police officer in the City of Seaside saw defendant attempt to cross the street, stagger, and fall to one knee. The officer approached defendant to see if he needed help. Defendant proceeded to a nearby driveway where the officer saw him discard something into the bushes. A search of the bushes yielded three bags containing a substance later determined to be cocaine base. The bags contained a total of 4.1 grams of the substance. Defendant was arrested and charged with one count of possessing cocaine base for sale (Health & Saf. Code, § 11351.5 (count 1)), one count of destroying evidence (Pen. Code, § 135 (count 2)), and one count of transporting or selling narcotics (Health & Saf. Code, § 11352, subd. (a) (count 3)). The information also alleged two prior narcotics convictions (id. § 11370.2, subd. (a)), and two strikes: a robbery that occurred in 1981 (Pen. Code, § 211) and manslaughter that occurred in 1967 (former Pen. Code, § 192.1). (See Stats. 1945, ch. 1006, § 1, p. 1942; see also Stats. 1984, ch. 742, § 1, p. 2703.)
Defendant pleaded not guilty and filed a motion under Penal Code section 995 to dismiss the charges. The trial court denied the motion. On March 2, 2011, defendant pleaded no contest to count 3 and admitted that he had been convicted of robbery in 1981 in exchange for a promise of six years in prison and dismissal of the remaining charges and the 1967 strike allegation.
Defendant was sentenced on March 30, 2011. On April 6, 2011, defendant filed a notice of appeal and also filed a "Post-Conviction Objection/Motion" in which he argued that he had received ineffective assistance of counsel because his attorney had not attempted to prove that the 1981 robbery was not a strike and that the prosecutor had committed misconduct by falsely inflating the length of the sentence he would have received if convicted as charged. The trial court denied the motion noting, among other things, that defendant had a continuous record of criminal behavior dating back to 1964.
II. DISCUSSION
Defendant did not obtain a certificate of probable cause, which is required by Penal Code section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. Accordingly, the appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (Pen. Code, § 1237.5, subd. (a).) Defendant's April 6, 2011 notice of appeal states that it is based upon grounds that arose after entry of the plea and do not affect the plea's validity. A certificate of probable cause is not required for this court to consider alleged postplea error. (Cal. Rules of Court, rule 8.304(b)(4).)
We have read and considered the argument raised by defendant in his letter brief, which is that, notwithstanding his plea bargain, the trial court should not have relied upon the 1981 robbery as a sentence-enhancing strike. We have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having done so, we conclude that there is no arguable issue on appeal.
III. DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.