Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD214246, Theodore M. Weathers, Judge.
NARES, J.
INTRODUCTION
A. Guilty Plea
On September 22, 2009, after defendant Richard Brian Eggson initialed and signed a change of plea form, and after the court advised him of his constitutional rights and the potential consequences of his plea, Eggson pleaded guilty to one count of selling a controlled substance (cocaine base) in violation of Health and Safety Code section 11352, subdivision (a) (count 1) and one count of possessing cocaine base for sale in violation of Health and Safety Code section 11351.5 (count 2). As to both counts, he admitted allegations that he committed specified prior drug offenses within the meaning of Health and Safety Code sections 11370.2, subdivision (a), and 1203.07, subdivision (a)(11). Eggson also admitted allegations that he had suffered two prison priors for committing specified drug offenses (Pen. Code, §§ 667.5, subd. (b), 668) and one strike prior for committing a residential burglary (Pen. Code, §§ 667, subds. (b)-(i), 668).
B. Sentencing
Defense counsel brought, on Eggson's behalf, a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385 to strike the prior strike conviction allegation (hereafter referred to as the Romero motion), and filed in conjunction with that motion a sentencing statement in mitigation. Noting that "the prosecution lists 11 prior convictions" as a basis for denying his Romero motion, Eggson asserted that "four of the convictions are so remote in time that they should not be considered." He also asserted that he is an addict and his prior convictions "do not indicate [he] has any real violent tendencies." Specifically, he asserted that "[o]ne misdemeanor domestic violence charge and one resisting an officer charge in a period of over 30 years does not indicate [he] has a history of violence." He urged the court to sentence him to a six-year prison term.
On February 1, 2010, Eggson appeared at the sentencing hearing with his counsel. The court indicated it had read and considered the probation officer's report, Eggson's Romero motion and statement in mitigation, the prosecutor's sentencing statement, a letter from Eggson, certificates regarding classes Eggson completed while in custody, and an inmate adjustment report. In the exercise of its discretion, the court denied Eggson's Romero motion, noting that Eggson's "extensive" criminal history dated back to 1988.
After hearing arguments by defense counsel, the prosecutor, and Eggson (who requested commitment to a prison facility that offers treatment under Penal Code section 1170.9), the court sentenced Eggson for his count 1 conviction to the low term of three years in state prison, doubled to six years under the Three Strikes law "based upon the relatively small quantity of narcotics, 2.76 grams of cocaine base, [Eggson] sold to the undercover officer in this case." With respect to Eggson's count 2 possession conviction, the court imposed the low term of three years, doubled to six years under the Three Strikes law, and then stayed that term under Penal Code section 654. The court then imposed an additional, consecutive three-year term based on Eggson's admission he had suffered a prior drug offense conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). For sentencing purposes, the court dismissed the second prior drug offense conviction allegation, as well as the two prison prior allegations.
Penal Code section 1170.9, subdivision (a) provides: "In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service. The court may request, through existing resources, an assessment to aid in that determination."
The court thus sentenced Eggson to a total prison term of nine years. The court awarded him a total of 900 days of presentencing custody credits (600 actual days for local time served, plus 300 days under Penal Code section 4019).
Eggson's appeal in propria persona followed. The court denied his request for a certificate of probable cause.
FACTUAL BACKGROUND
For purposes of the change of plea hearing, Eggson admitted as the factual basis for his guilty plea that he "possessed a usable amount of cocaine base for sale and sold cocaine base."
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to the following as possible, but not arguable, issues: (1) Was Eggson "properly advised of his rights prior to entering the plea bargain?"; (2) is there a factual basis for his plea?; (3) are his credits calculated correctly?; (4) did the court abuse its discretion when it denied his Romero motion?; and (5) did Penal Code section 1170.9, subdivision (a) apply to him "where the appellate record showed military service, drug abuse, and post-traumatic stress disorder, but did not show combat service?"
See footnote 1, ante.
With this court's permission granted by order dated August 16, 2010, Eggson filed a supplemental brief on his own behalf. He claims that (1) his defense counsel provided constitutionally ineffective assistance of counsel by "fail[ing] to submit information of evidence in circumstances of mitigation" regarding his "emotional problems and psychological disorders, " his sexual molestation by a babysitter when he was eight years of age, his exposure to his parents' domestic violence, and the "psychological disorders, depression [and] drug addiction" he suffered while serving in the military "under hostile condition[s]"; (2) the court abused its discretion when it denied his Romero motion, in that the court "failed to take into consideration all circumstances in mitigation, " it "placed emphasis on [his] extensive criminality, " "[a]ll of [his] criminal history" is the result of his drug addiction, and his sentence in the present case is disproportionate "because of [his] drug addiction, his psychological disorder[, and] his willingness to come forward to his parole officer and ask for help to deal with his drug addiction and mental disorders"; and (3) the court abused its discretion at sentencing when it "denied [his] motion for [a] treatment program under Penal Code section 1170.9, subd[ivision] (a)."
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues raised by appellate counsel and Eggson himself in his supplemental brief, has disclosed no reasonably arguable appellate issue. The record shows he was properly advised of his rights before he entered his guilty plea and admitted the various enhancement allegations; there is factual basis for his plea; his credits were calculated correctly; and the court did not abuse its discretion when it denied his Romero motion and his request under Penal Code section 1170.9, subdivision (a), both of which were before the court for its discretionary determination. Eggson expressly acknowledges that "the trial court had in [its] posses[s]ion the probation report that had evidence of circumstances of mitigation of [his] child abuse, his exposure to domestic violence and input of psychological disorders [he] suffered while he was serving in the military service in hostile condition[s]." We thus conclude there is no reasonably arguable appellate issue as to whether his defense counsel provided ineffective assistance of counsel. Eggson has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.