Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR091281S
Jenkins, J.
Defendant and appellant, Matthew Michael Hilberg, appeals from a final judgment and sentence following his guilty-plea conviction for possession of heroin for sale. Defendant’s counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but has not done so. We have conducted an independent review of the record, conclude there are no arguable issues, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In a criminal complaint filed on March 9, 2009, defendant was charged with the possession of heroin for sale, in violation of Health and Safety Code section 11351. The complaint also alleged defendant had suffered a prior felony drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). The complaint further alleged that defendant suffered a prior felony conviction within the meaning of Penal Code section 667.5, subdivision (b).
At a hearing on March 20, 2009, counsel for defendant stated defendant wished to plead guilty to the offense as charged in return for a midterm sentence of three years and dismissal of all allegations in the complaint. The trial court advised defendant of the maximum term and also advised him of his constitutional rights. The prosecutor described the factual basis for the plea as follows: “On March 5, 2009, in the Old Town part of Eureka,... citizens had notified law enforcement of concerns about the sales of heroin or other drugs in that area. One citizen observed what [he] believed to possibly be a hand-to-hand sale between the defendant and another. Law enforcement obtained a videotape of that contact from the facility in Old Town, and, in fact, observed the defendant with another person involved in conduct that was consistent with hand-to-hand sales. They contacted [defendant] and found in his glove a usable quantity of heroin. He did, in fact, admit that he possessed it to sell later on to another individual. He also had over $900 in cash on his person in various denominations consistent with someone involved in the sales of drugs.” In response, counsel for defendant stated, “[Defendant] disagrees that he admitted possessing it for sale, but stipulates to the rest of that.”
The trial court concluded there was a factual basis for the plea. Defendant pled guilty to the charge. The court entered defendant’s guilty plea upon a finding defendant knowingly and intelligently waived his rights. Defendant also waived his right to a probation report for purposes of sentencing. The trial court then imposed a sentence of three years in accordance with the plea agreement. In addition, the trial court ordered defendant to pay a restitution fine of $600 pursuant to Penal Code section 1202.4, subdivision (b), and an additional restitution fine of $600 pursuant to Penal Code section 1202.45, suspended unless defendant’s parole is subsequently revoked.
On March 30, 2009, defendant filed a notice of appeal challenging the validity of the plea, accompanied by a request for a certificate of probable cause stating: “Defendant was not aware of his right to a Preliminary Examination or his Constitutional right to a speedy and public trial by jury. Defendant was wrongly charged with H&S 11351 possession for sale. Defendant took plea under duress. Defendant should have been placed on Prop[osition] 36 or Drug Diversion.” On April 23, 2009, the trial court granted defendant’s request for a certificate of probable cause.
DISCUSSION
Defendant’s “certificate” claims raise no arguable issues. (People v. Mendez (1999) 19 Cal.4th 1084, 1088 [defendant who has pleaded guilty to a charge may not obtain review of “ ‘certificate’ issues, that is, questions going to the legality of the proceedings, including the validity of his plea,” unless he timely obtains a certificate of probable cause].) Defendant’s claims that he was not aware of his right to a preliminary examination or his trial rights are belied by the record, which demonstrates that he acknowledged his advisement of those rights by the trial court. The record also shows that defendant told the trial court he took the decision to change his plea “freely and voluntarily.” Accordingly, his claim of duress raises no arguable issue. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 [noting that a guilty plea “may not be withdrawn simply because the defendant has changed his mind”].)
We shall construe defendant’s certificate claim that he “was wrongly charged with H&S 11351 possession for sale” to encompass a claim that his guilty plea lacked a factual basis. However, we conclude that claim raises no arguable issue. (People v. Holmes (2004) 32 Cal.4th 432, 441 [“The factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges. [Citation.] It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant’s guilt.”].) At the change of plea hearing, defendant stipulated that he engaged in a hand-to-hand exchange that was captured on videotape and confirmed by law enforcement as conduct consistent with a drug deal; that law enforcement subsequently found a usable quantity of heroin in his glove; and that law enforcement also found over $900 in cash on his person in various denominations consistent with someone involved in the sales of drugs. These facts as stipulated to by defendant provided an ample factual basis for the trial court’s acceptance of his guilty plea. (People v. Marlin (2004) 124 Cal.App.4th 559, 572 [“ ‘[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.’ (Citation.)”].)
Similarly, defendant’s claim that he should have received the benefits of probation and treatment under Proposition 36 raises no arguable issue. A defendant is only eligible for such benefits if convicted of a “nonviolent drug possession offense.” (Pen. Code, §1210.1, subd. (a).) “The term ‘nonviolent drug possession offense’ does not include the possession for sale, transportation for sale, production, or manufacturing of any controlled substance.” (§ 1210, subd. (a); People v. Dove (2004) 124 Cal.App.4th 1, 6 [nonviolent drug possession offense, as defined in Proposition 36 excludes “the possession for sale” of any controlled substance.].) Accordingly, because defendant pleaded guilty to possession for sale, he was statutorily ineligible to receive the benefits of Proposition 36.
Proposition 36 is codified in Penal Code sections 1210, 1210.1, and 3063.1.
Furthermore, our independent review of the record reveals no non-certificate issues that require briefing. Following a guilty plea entered upon a knowing and intelligent waiver of his constitutional rights, appellant, represented by competent counsel, was sentenced to a term of three years in state prison. The sentence imposed was lawful (see Cal. Rule of Court, rule 4.420) and in accordance with appellant’s valid plea agreement. Having ensured appellant received adequate and effective appellate review, we thus affirm the trial court’s judgment. (People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J. Pollak, J.