Opinion
A099624.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. DANE AARON GASPER, Defendant and Appellant.
Dane Gasper appeals from a judgment of conviction entered upon a plea of nolo contendere. Appellants court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.
An information filed in the Humboldt County Superior Court charged appellant with the transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), transportation of methamphetamine ( § 11379, subd. (a)), transportation of LSD ( § 11379, subd. (a)), transportation of MDSA ( § 11379, subd. (a)), possession of cannabis ( § 11357, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1 ), a misdemeanor.
In a negotiated disposition, appellant pleaded nolo contendere to transportation of methamphetamine ( § 11379, subd. (a)) with the understanding that the court would sentence him to two years in state prison. Pursuant to the terms of the negotiated plea, the court then granted the prosecutions motion to dismiss the remainder of the information.
As agreed, the court sentenced appellant to the mitigated term of two years in state prison for transportation of methamphetamine (§ 11379, subd. (a)). The court ultimately granted appellant 139 days total presentence credit and ordered him to pay a $ 400 restitution fine.
Appellant has filed a supplemental opening brief in propria persona in which he wishes to raise three sets of issues. First, appellant seeks to raise evidentiary issues related to the initial detention and arrest that led to the discovery of the contraband he allegedly transported. However, by pleading nolo contendere, appellant waived review of any evidentiary issues.
Secondly, appellant wishes to challenge the term of his plea bargain wherein he agreed to stipulate that he was not eligible under Penal Code section 1210 et seq. (Prop. 36) for drug treatment in lieu of incarceration. The prosecution initially charged appellant with a nondrug-related misdemeanor (Veh. Code, § 14601.1, subd. (a)). A conviction for that alleged offense would have disqualified appellant from the provisions of Penal Code section 1210.1. (Pen. Code, § 1210.1, subd. (b)(2).) In exchange for agreeing to dismiss the disqualifying misdemeanor, the prosecution insisted that appellant stipulate he was not eligible for drug treatment. Appellant now alleges that he had a factual defense to the misdemeanor charge and should not have been required to enter into the stipulation. Having received the benefit of the plea bargain, appellant is precluded from renegotiating the terms of the plea. Had appellant wished to pursue his factual defense, he should have adjudicated the issue and accepted the concomitant risk.
Finally, appellant alleges that his attorney neither prepared for trial nor adequately explained the terms of the plea bargain. Essentially, appellant argues he received less than adequate representation. Nothing in the record supports appellants contention. It is true that at one point prior to accepting the negotiated plea, appellant stated that because he believed he faced a maximum penalty of eight years and eight months, he agreed to stipulate he was ineligible for treatment under Penal Code section 1210. Pursuant to the holding in In re Adams (1975) 14 Cal.3d 629, 635, 122 Cal. Rptr. 73, 536 P.2d 473, it is unlikely that appellant could have been punished for each of the counts of transportation alleged in the information since, based on the preliminary hearing testimony, each offense arose from an indivisible course of conduct with a single objective (Pen. Code, § 654). Thus, appellant may not have faced a term of eight years eight months. However, even if appellant was misinformed, he fails to demonstrate how the stipulation placed him in a position worse than if the prosecutor simply refused to dismiss the misdemeanor. Regardless, any claim that the plea was somehow improperly induced would require facts outside the record on appeal and would have to be raised in a petition for a writ of extraordinary relief. Accordingly, the issue on appeal is not meritorious.
Before appellant entered his plea, the court advised him of the constitutional rights he would be waiving and the direct consequences of his plea. Appellant expressly waived his constitutional rights and knowingly and voluntarily pleaded nolo contendere.
Appellant was represented by counsel throughout the proceedings.
There was no sentencing error.
There are no issues that require further briefing.
The judgment is affirmed.
We concur: Kline, P. J., and Lambden, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.