Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06SF0584, Pamela Lee Iles, Judge.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Sean Laverty filed a notice of appeal from a judgment of conviction after he pled guilty to two felony counts of possessing heroin and methamphetamine for sale. A certificate of probable cause was denied by the trial court. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).) We appointed counsel to represent Laverty on appeal. Counsel filed a brief that set forth the facts. Counsel did not argue against Laverty, but advised the court no issues were found to argue on his behalf and asks that we review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Laverty was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from Laverty. We dismiss the appeal.
FACTS AND PROCEDURE
Laverty was charged with one count each of possessing heroin and methamphetamine for sale. (Health & Saf. Code, §§ 11351, 11378.) He was also charged with two misdemeanor counts (possession of paraphernalia and a needle). The information alleged for purposes of Health and Safety Code section 11370.2, subdivision (a) [consecutive three-year term for each prior felony drug conviction], Laverty suffered prior convictions in 2002 and 2003 for violating Health and Safety Code sections 11351 and 11378, and served a prison term for each of those convictions for purposes of Penal Code section 667.5, subdivision (b) [consecutive one-year term for each prior prison term].
On August 7, 2006, prior to his preliminary hearing, Laverty pled guilty to the two felony counts and admitted all charged priors. The prosecution dismissed the misdemeanor counts. In his Tahl (People v. Tahl (1967) 65 Cal.2d 719) form, Laverty acknowledged he faced a maximum total punishment of 18 years, eight months; the proposed sentence was five years, eight months. On the Tahl form, Laverty stated as the factual basis for his guilty plea, “On [June 12, 2006], I unlawfully [and] knowingly possessed heroin and methamphetamine for the purpose of selling it. I was also convicted in [the 2002 case] and [the 2003 case] and served separate prison sentences over [one] year in each case and failed to remain free from prison custody for a period of [five] years. I was convicted of violations of [Health and Safety Code sections] 11351 and 11378 in [the 2002 case] and [the 2003 case].” After accepting his guilty plea, the court sentenced Laverty to a total term of five years, eight months in prison.
On November 8, 2006, Laverty filed a notice of appeal that stated his “appeal challenges the validity of the plea . . . .” In his request for a certificate of probable cause, Laverty stated that at the time of his plea, his trial counsel had not made him “aware of certain cases that would have affected my decision to plead.” He has since then found cases suggesting the evidence of his specific intent might have been insufficient to support a conviction had he gone to trial. The certificate of probable cause was denied. Laverty did not seek writ review.
DISCUSSION
Because a certificate of probable cause was denied, and Laverty has not sought writ relief from the denial, the appeal must be dismissed. (See People v. Castelan (1995) 32 Cal.App.4th 1185, 1188; see also Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).)
Even were appellate review appropriate, we would affirm. Pursuant to Anders v. California (1967) 386 U.S. 738, appellate counsel has identified some possible, but not arguable, issues including: (1) Was Laverty’s guilty plea constitutionally entered and recorded? (2) Was the actual sentence consistent with the agreed upon sentence? (3) Was there a sufficient factual basis for the plea? and (4) Did Laverty receive effective assistance of counsel based on his allegation trial counsel did not inform him of published opinions that might have precluded his conviction on the charged offenses?
We have reviewed the record and conclude appellate counsel correctly assessed the first three points. Between the court’s verbal admonishment and the validly executed Tahl form, Laverty was properly advised of and waived his constitutional rights. (See In re Ibarra (1983) 34 Cal.3d 277, 285-286 [validly executed waiver form is proper substitute for verbal admonishment by trial court], disapproved on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.) Laverty was sentenced to precisely the term he understood he would receive and the court confirmed on the record the factual basis for the plea set forth on the Tahl form. (See Pen. Code, § 1192.5; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.) As for counsel’s fourth possible issue, the allegation trial counsel did not adequately explain the law or the strength of the prosecution’s case cannot be resolved on the appellate record; such a claim must be asserted via a petition for writ of habeas corpus. (See People v. Pope (1979) 23 Cal.3d 412, 426.) Our independent review of the record has turned up no other issue to argue.
DISPOSITION
The appeal is dismissed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.