Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Levy, Acting P.J., Gomes, J., and Dawson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. F06901348.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FACTS AND PROCEEDINGS
Appellant, Gerrell Andre Foster, was charged in a criminal complaint filed February 27, 2006, with attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count two), corporal injury to a spouse/cohabitant/child’s parent (§ 273.5, subd. (a), count three), spousal rape (§ 262, subd. (a)(1), count four), and making criminal threats (§ 422, count five). The complaint also alleged a prior serious felony conviction for first degree burglary in 2002 within the meaning of the three strikes law.
Unless otherwise noted, all statutory references are to the Penal Code.
On June 8, 2006, the court granted Foster’s motion pursuant to Faretta v. California (1975) 422 U.S. 806 to represent himself. On August 24, 2006, the court granted Foster’s motion to have counsel appointed.
On October 2, 2006, Foster brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his appointed counsel, Mr. Torres. Foster asserted that Torres failed to contact witnesses and misled him on a plea offer from the prosecutor. Torres explained that he was trying to contact witnesses provided by Foster and reviewed different plea offers made by the prosecutor.
Torres also explained counteroffers he made to the prosecutor on behalf of Foster. One of these was the plea agreement Foster agreed to accept later that day. Foster vaguely stated that he was not getting along with Torres. The court found no breakdown in the attorney-client relationship and no basis for relieving Torres as counsel. The court denied the Marsden motion.
We find no error in the Marsden proceedings.
On October 2, 2006, after the Marsden hearing, Foster entered into a plea agreement in which he agreed to plead no contest to count four (spousal rape) and count two (assault with a deadly weapon likely to cause great bodily injury) in exchange for dismissal of the other allegations. Foster would be sentenced to the low term of three years on count four, doubled to six years under the three strikes law. Foster would be sentenced to a consecutive term of one-third the midterm on count two, one year, which would be doubled to two years under the three strikes law for a total prison term of eight years. Foster executed a felony advisement, waiver of rights, and plea form (form) acknowledging and waiving his constitutional rights pursuant to Boykin/Tahl.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
In executing the form, Foster admitted counts two and four, as well as the prior serious felony allegation. Foster acknowledged consequences of his plea, including that he would be subject to a restitution fine between $200 and $10,000 and would have to register as a sex offender pursuant to section 290.
The trial court advised Foster of the consequences of his plea and of his constitutional rights, which Foster expressly waived in open court. The parties stipulated to a factual basis for the plea. Foster pled no contest to counts two and four and admitted the prior serious felony allegation. The court granted the prosecutor’s motion to dismiss the remaining allegations.
The parties waived a probation report. Pursuant to the stipulated sentence, the court sentenced Foster to prison for the low term of three years, doubled to six years pursuant to the three strikes law, and a consecutive term of one year on count two, doubled to two years pursuant to the three strikes law. The court ordered Foster to register as a sex offender pursuant to section 290 and to pay a restitution fine of $1,600. The court also granted applicable custody credits. Foster also waived his right to appeal, except for whether his prior conviction was a serious felony prior conviction.
Foster’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Foster was advised he could file his own brief with this court. By letter on April 16, 2007, we invited Foster to submit additional briefing. To date he has not done so.
DISCUSSION
We initially note that Foster failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious errors in Foster’s change of plea hearing. Foster was fully advised of the consequences of his plea and his constitutional rights. He bargained for and received the stipulated sentence of eight years.
The low term for a violation of section 262 is three years. (§ 263.) The midterm for a violation of section 245, subdivision (a)(1) is three years; one-third the midterm of three years is one year. Foster was also advised prior to changing his plea of other serious consequences of his plea, including the imposition of a restitution fine and registration as a sex offender pursuant to section 290. We find no error in the trial court’s computation or imposition of Foster’s sentence.
The single issue Foster reserved for appellate review at the change of plea hearing was whether his prior serious felony conviction was a serious felony within the meaning of the three strikes law. Foster admitted the allegation in the felony complaint that this conviction was for a violation of sections 459 and 460, subdivision (a). Section 460, subdivision (a) defines first degree burglary. Section 667, subdivision (d)(2) defines a prior conviction for the purposes of the three strikes law as being defined by subdivision (c) of section 667.5 or subdivision (c) of section 1192.7. First degree burglary is set forth as a qualifying prior conviction under the three strikes law in section 667.5, subdivision (c)(21) and section 1192.7, subdivision (c)(18). Foster’s prior conviction for first degree burglary qualifies as a prior serious felony conviction within the three strikes law. The trial court did not err in applying it as a second strike to double Foster’s sentences in counts two and four.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.