Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF060115
ROBIE, J.
On December 15, 2005, a Davis Police Officer attempted to stop defendant Maurice Johnson for a Vehicle Code violation. Defendant fled the scene on foot. Despite the officer’s repeatedly identifying himself as an officer and ordering defendant to stop, defendant continued to flee. When he was finally cornered, defendant punched the officer in the face. Defendant fled again, and was ultimately taken into custody by another officer who had responded to the scene. The officers noticed defendant was showing “significant symptoms of alcohol intoxication.” He was taken to the hospital where he consented to a Breathalyzer and a blood test, the results of which indicated he had a blood-alcohol content of .155/.141 percent.
In exchange for a five-year prison sentence, defendant pled no contest to resisting arrest and driving under the influence of alcohol after having a previous felony conviction for driving under the influence within the last 10 years. Defendant also admitted having a prior strike conviction and having served a prior prison term. The remaining charges were dismissed as part of the plea agreement. In accordance with the plea, defendant was sentenced to an aggregate term of five years in prison.
The details of the plea agreement and sentence were set forth in the felony plea form signed by defendant. They were also explained in open court prior to defendant’s making his plea, and he agreed to the terms.
The May 2, 2008, abstract of judgment reflected the above sentence and also showed that defendant had been “sentenced pursuant to PC 667 (b)-(i) or PC 1170.12 (two strikes).” The abstract also provided custody credits would be calculated later, following receipt of the postsentence report from probation.
On June 4, 2008, defendant wrote to the court, stating he was “withdrawing my ‘plea bargain,’ for the simple fact my lawyer . . . promised me a deal without a strike!” Defendant also noted he had not been given his custody credits.
On June 10, 2008, the court ordered defendant be granted 482 days’ custody credit.
On June 16, 2008, defendant filed a notice of appeal and sought a certificate of probable cause. In the certificate, he reiterated his request to be allowed to withdraw his plea claiming his plea bargain was predicated on his not receiving a second strike. He also restated his complaint that he had not received appropriate credits.
Because of defendant’s June 4 letter, a hearing was set for June 26, 2008. At that hearing, the parties noted the corrections made to the amended abstract of judgment. The parties agreed that 482 days was the correct amount of credits. Defense counsel also noted the portion of the previous abstract which showed defendant had “two strikes.” Counsel said the abstract should not reflect two strikes. The court agreed, “you’re right, Counsel. [Counts] [o]ne and three were pled as one strike, not picking up two strikes. So it looks like we need to amend the abstract of judgment, . . . in item number four on the first page defendant was sentenced as one prior strike sentencing.” The court also noted the corrected credits had already been sent to the Department of Corrections and Rehabilitation.
The parties specifically discussed defendant’s motion to withdraw his plea. Defense counsel interpreted defendant’s letter as “he thinks he is getting the short end of the stick. If he didn’t want that deal with no credits and two strikes. He wants the deal that he got, which is one strike, and better credits.” (Italics added.)
The court said since defendant’s claims were postjudgment claims, defendant would have to pursue a motion to withdraw his plea by way of petition or writ. The court ordered the abstract be corrected to reflect a single strike and suggested defense counsel inform defendant a hearing was had on the matter and the issue was corrected. Counsel said he intended to so advise defendant.
On June 29, 2008, defendant filed an ex parte motion seeking an amended abstract to include additional credits.
On July 1, 2008, defendant filed another notice of appeal and sought a second certificate of probable cause. Again he sought to withdraw his plea, based on the claim he had agreed to a deal which did not include his receiving a second strike.
The court granted a certificate of probable cause on July 1, 2008, and granted the earlier requested certificate of probable cause on July 2, 2008.
Also on July 1, 2008, the court notified defendant it could not have any further hearings on the matter because the court had been divested of jurisdiction by the filing of the notice of appeal.
On July 10, 2008, the court filed an amended abstract of judgment, which reflected the corrected custody credits of 482 days. The abstract stated defendant had been sentenced pursuant to “667(c)/667(e)(1) PC.”
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J. HULL, J.