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People v. Howard

Court of Appeals of California, Fourth District, Division One.
Nov 5, 2003
No. D041857 (Cal. Ct. App. Nov. 5, 2003)

Opinion

D041857.

11-5-2003

THE PEOPLE, Plaintiff and Respondent, v. DONALD EARL HOWARD, JR., Defendant and Appellant.


In superior court case No. SCD160633, Donald Earl Howard, Jr., entered guilty pleas to selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). He admitted serving a prior prison term (Pen. Code, §§ 667.5, subd. (b), 668)[] and a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668). While he was released on bail pending sentencing, he was arrested for the crimes charged in case No. SCD167324. In case No. SCD167324, after the court declared a mistrial in a jury trial and denied a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), Howard entered guilty pleas to selling cocaine base and possessing cocaine base for sale. He admitted serving a prior prison term and a strike prior, committing the new offense while released on bail (§ 12022.1, subd. (b)) and having two prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)). The court imposed sentence in case No. SCD160633 and case No. SCD167324 at a single hearing. It dismissed the strike prior and sentenced Howard to prison for eight years four months: the four-year middle term for selling cocaine base in case No. SCD167324, enhanced three years for the prior drug conviction with a consecutive one year four months for selling cocaine base in case No. SCD160633. In both cases, the court struck the remaining enhancements and stayed sentence on the possessing a controlled substance for sale convictions (§ 654). As part of the plea bargains, Howard waived his right to appeal denial of a section 1538.5 motion, issues relating to strike priors, and any stipulated sentence. The record does not contain a certificate of probable cause.

All further statutory references are to the Penal Code unless otherwise specified.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Howards waiver of his right to appeal is valid; (2) whether Howards guilty pleas were constitutionally valid; (3) whether the trial court erred in denying the Marsden motion; (4) whether the trial court erred in choosing the principle offense for sentencing; (5) whether the trial court erred in imposing consecutive terms; (6) whether the trial court erred in imposing a four-year middle term in the principle case; and (7) whether Howards trial counsel provided effective assistance.[]

Because Howard entered guilty pleas, he cannot challenge the facts underlying the convictions. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.

We granted Howard permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Howard on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J. and NARES, J.


Summaries of

People v. Howard

Court of Appeals of California, Fourth District, Division One.
Nov 5, 2003
No. D041857 (Cal. Ct. App. Nov. 5, 2003)
Case details for

People v. Howard

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DONALD EARL HOWARD, JR.…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 5, 2003

Citations

No. D041857 (Cal. Ct. App. Nov. 5, 2003)