Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 1221018, Hurl W. Johnson III, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.
OPINION
FACTS AND PROCEEDINGS
On June 7, 2007, an information was filed alleging appellant, George Randall Harrison, possessed a controlled substance (Health & Saf. Code, § 11350, count one), drove while addicted to a controlled substance (Veh. Code, § 23152, subd. (c), count two), and resisted arrest (Pen. Code, § 148, subd. (a)(1), count three). The information alleged a prior serious felony conviction within the meaning of the three strikes law and three prior prison term enhancements.
Unless otherwise indicated, all statutory references are to the Penal Code.
On November 5, 2007, appellant entered into a plea agreement. The court advised appellant of the consequences of his plea. The parties stipulated to a factual basis for the plea. Appellant waived his constitutional rights pursuant to Boykin v. Alabama (1969), 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 and pled no contest to counts one and three. Appellant also admitted the allegation that he committed a prior serious felony. The court granted the prosecutor’s motion to dismiss count two.
At 1:28 a.m. on December 31, 2006, Officer Randy Davis of the Modesto Police Department was on patrol in downtown Modesto when he saw appellant drift to the left into the number two lane in his Jeep. After 60 to 80 feet, appellant drifted back into the number one lane. Davis activated his red and blue emergency lights to stop appellant, but appellant did not stop until Davis activated his siren. Appellant fumbled with his driver’s license, grabbed a soda to drink, and fumbled with his seat belt. Appellant was concealing something in his mouth. Davis asked appellant to open his mouth. Davis and his partner attempted to arrest appellant, who was resisting them and chewing something in his mouth. Another officer held appellant’s jaw to stop the chewing. A thick, brown, gooey substance formed around appellant’s mouth. He smelled of vinegar. In Davis’s experience, appellant had heroin in his mouth. Davis was eventually able to retrieve a baggy from appellant’s mouth. The parties stipulated it contained heroin.
The court denied appellant’s request to exercise its discretion, pursuant to People v. SuperiorCourt (Romero) (1996), 13 Cal.4th 497, to strike the prior serious felony allegation on December 13, 2007. The court sentenced appellant to the upper term of six years, the three-year upper term doubled pursuant to the three strikes law. The court suspended execution of sentence and placed appellant on probation.
Appellant did not appeal from the trial court’s December 2007 sentencing hearing. Because the trial court imposed a six-year prison term and stayed execution of the sentence, the trial court could not modify its original sentence and the case became final in terms of its appealability. (People v. Howard (1997), 16 Cal.4th 1081, 1087-1088, 1090 (Howard).) If there were any infirmities with the early legal proceedings in this action, appellant had 60 days from December 13, 2007, to perfect an appeal challenging them. (Cal. Rules of Court, rule 8.308(a).) Furthermore, appellant failed to obtain a certificate of probable cause. He cannot, therefore, challenge the validity of his plea on appeal. (People v. Panizzon (1996), 13 Cal.4th 68, 77-79.)
On November 3, 2008, the appellant admitted he violated the terms of his probation by failing to complete the Alternate Work Program. On December 8, 2008, the court referred appellant to drug court for evaluation of his eligibility for the program. On December 15, 2008, the court found appellant ineligible for drug court. On December 17, 2008, the court ordered execution of appellant’s six-year prison sentence. The court awarded appellant applicable custody credits. The court denied appellant’s request for a certificate of probable cause.
Because the court had previously imposed and stayed appellant’s prison term of six years, it could not impose a lower prison term. (Howard, supra, 16 Cal.4th at pp. 1090, 1095.)
Appellant’s appointed appellate counsel has filed an opening brief that 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 appellant was advised he could file his own brief with this court. By letter on May 19, 2009, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.