Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. SWF020354. Judith C. Clark, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Travis Brenn Baker.
The Law Office of Melchor E. Quevedo and Melchor E. Quevedo for Defendant and Appellant Gilberto Cuevas.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendants Cuevas and Baker appeal from their respective convictions following negotiated pleas for stipulated sentences.
BACKGROUND
An amended complaint was filed against Baker, Cuevas, and nine other defendants, alleging 22 counts. Baker was charged with residential burglary (Pen. Code, § 459, count 2), unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count 3), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a), count 4), receiving stolen property (Pen. Code § 496, subd. (a), counts 5 & 7), arson (Pen. Code, § 451, count 8) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 21.) Cuevas was charged with receiving stolen property (Pen. Code, § 496, subd. (a), count 9), residential burglary (Pen. Code, § 459, count 12), transportation of steroids (Health & Saf. Code, § 11379, subd. (a), count 20), and grand theft of a firearm (Pen. Code, § 487, subd. (d)(2), count 22.) It was further alleged as to each count that the offense was committed for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b).)
On April 13, 2007, the date set for the preliminary hearing, defendant Baker pled guilty to counts 2 and 21, and admitted the gang enhancement as to count 2. The plea agreement provided for a stipulated sentence of seven years in state prison with one-half time credits, and a waiver of appeal rights. The parties stipulated that a factual basis for the plea was established by the sealed affidavit in support of a search warrant. Baker was sentenced in accordance with the terms of the plea agreement. He appealed, requesting a certificate of probable cause which was granted.
On that same date, defendant Cuevas waived his right to a preliminary hearing, pled guilty to counts 9, 12, 20, and 22, admitted the gang enhancement as to count 12, and waived his appeal rights, in return for a stipulated state prison sentence of six years four months. The parties stipulated that a factual basis for the plea was established by the sealed search warrant affidavit relied upon for Baker’s plea. On April 16, 2007, he was sentenced in accordance with the plea agreement. He filed a notice of appeal but did not request a certificate of probable cause.
DISCUSSION
a. Cuevas’s Appeal
Cuevas complains that (1) his attorney acted incompetently by not demurring to the vague allegations in the amended complaint with respect to count 9, receiving stolen property, to wit: a firearm, and count 22, grand theft of a firearm; (2) the court’s “pronouncement in sentencing of ‘first degree murder residential burglary’ was clearly prejudicial error which violated” his due process rights; and (3) he was punished twice for the same act, stealing a pistol and possession of the stolen firearm. We disagree with these contentions.
First, Cuevas’s appeal is not operative because his claims (ineffective assistance of counsel in failing to demur or object to vagueness in the complaint) relate to constitutional grounds going to the legality of the proceedings. (Pen. Code, § 1237.5.) Although Cuevas points to the fact the trial court advised him he was waiving his right to appeal “except as to incompetence of counsel,” he was required to seek and obtain a certificate of probable cause in order to review such a claim. (See People v. Stubbs (1998) 61 Cal.App.4th 243, 244.)
Second, the court did not pronounce judgment for “first degree murder residential burglary” as asserted. While the reporter’s transcript of the sentencing hearing reflects that a misstatement was made, it is unreasonable to conclude that such a judgment was pronounced when (a) no such charge exists, (b) Cuevas was not charged with such a crime, and (c) the guilty plea, the minutes of the plea and sentencing, and the abstract of judgment correctly reflect the defendant was convicted and sentenced for first degree burglary only.
Finally, the defendant waived any sentencing error by stipulating to the sentence that was imposed and waiving his appeal rights. Because the sentence was an integral part of the plea agreement, a challenge to the sentence is a challenge to the guilty plea, which requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 84.) In any event, by agreeing to the specified prison term personally and by counsel, a defendant who is sentenced to that term abandons any claim that a component of the sentence violates Penal Code section 654’s prohibition against double punishment, unless that claim is asserted at the time the agreement is recited on the record. (Cal. Rules of Court, rule 4.412(b); People v. Hester (2000) 22 Cal.4th 290, 296.)
Even if we were to reach his claim of ineffective assistance of counsel on the merits, Cuevas has not established that counsel’s representation was deficient or that he was prejudiced by any deficient representation. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Having obtained the benefits of the plea agreement, he may not be heard to complain of sentencing error. (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057.)
b. Baker’s Appeal
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no ineffective assistance of counsel. (Strickland v. Washington, supra, 446 U.S. at p. 687.)
DISPOSITION
The judgments are affirmed.
We concur: Ramirez, P. J., Hollenhorst, J.