Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV703059, Ronald J. Gilbert, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant, represented by counsel, pled guilty to burglary (Pen. Code, § 459) and admitted that he had sustained a prior strike conviction (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); in return, the remaining allegations were dismissed, and defendant was promised a stipulated prison term of four years in state prison. Immediately thereafter, defendant was sentenced in accordance with the plea agreement. Defendant appeals from the judgment, challenging the validity of the plea agreement and the representation he received.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
A brief summary of the factual background is taken from the complaint. The parties stipulated that the police report contains a factual basis for the plea; however, the police report is not in the record on appeal.
On or about December 13, 2007, defendant entered a Frederick’s of Hollywood store and took money and/or property with a value exceeding $400. On December 14, 2007, a complaint was filed alleging that defendant committed second degree burglary (§ 459) and grand theft (§ 487, subd. (a)). The complaint further alleged that defendant had suffered a prior strike conviction (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), to wit, a 1994 robbery, and six separate prior prison terms (§ 667.5, subd. (b)).
Six days later, pursuant to a plea agreement, defendant pled guilty to burglary and admitted the prior strike conviction. In exchange, the remaining allegations were dismissed and defendant was promised a stipulated prison term of four years (two years doubled due to the strike prior). Defendant was immediately sentenced in accordance with the plea agreement with credit for time served.
On January 18, 2008, defendant in propria persona filed a motion to withdraw his plea, alleging ineffective assistance of counsel and “perjury within motion of discovery in police reports.”
On January 25, 2008, the trial curt denied the motion, stating that the “plea cannot be withdrawn after sentencing” and noting that defendant must file a notice of appeal to go forward. The court referred the matter to the public defender’s office.
On February 11, 2008, defendant’s appointed counsel filed a notice of appeal and request for certificate of probable cause on defendant’s behalf. The request for certificate of probable cause was denied on February 20, 2008.
On February 27, 2008, the superior court clerk by affidavit stated that two additional notices of appeal with requests for certificates of probable cause had been filed by defendant on February 1 and 19, 2008, and were awaiting review and signature by the judge. The court apparently took no action on either request.
II
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. 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 this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page supplemental letter brief, defendant apparently claims he received ineffective assistance of counsel when counsel failed to act with diligence and failed to investigate the facts.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, the record shows defendant was adequately advised of the rights being waived and the consequences of pleading guilty. Further, the plea agreement reflects defendant had sufficient time to consult with his attorney concerning the case. Additionally, in open court, defendant admitted that he understood all of his rights; that he was aware of the consequences of pleading guilty; that he had sufficient time to consult his attorney; that his attorney had explained everything on the plea form to him; and that he had sufficient time to consider the meaning of each statement in the plea form. In fact, defendant had no questions or hesitations during the taking of the plea.
In addition, we reject defendant’s claim that trial counsel was ineffective for failing to investigate the charges against him. There is no evidence in this record to support such a showing. Absent such a showing, we find no statutory or constitutional violation to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 698 [104 S.CT. 2052, 80 L.Ed.2d 674].) Moreover, defendant’s waiver of his right to appeal and his failure to obtain a certificate of probable cause forecloses this contention. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Panizzon (1996) 13 Cal.4th 68, 86-89.)
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., HOLLENHORST, J.