Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court for the County of Los Angeles, No. BA310124, Ruth Kwan, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, Attorney for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
COOPER, P.J.
Paul Duane Livingston filed a timely notice of appeal on March 7, 2007 after entering a plea of “no contest” to possession of cocaine base for sale. (Health & Saf. Code § 11351.5, count 2.) We affirm the judgment.
All further undesignated statutory references are to the Health and Safety Code.
On September 20, 2006, at about 6:15 p.m., appellant was on the 500 block of San Julian Street in Los Angeles. Los Angeles Police officers believed he was selling marijuana and he was approached by an undercover Los Angeles Police Officer at that location. After a brief conversation, appellant sold a baggie of marijuana to the officer for $20. Appellant was arrested and taken to the station house where he was allowed to use the restroom. While in the restroom, appellant dropped a piece of rock cocaine on the floor, where it was recovered by the officers. The net weight of the rock cocaine was 2.76 grams.
On October 31, 2006, Livingston was charged by information with sale of marijuana (§ 11360, subd. (a), count 1) and possession of cocaine base for sale (§ 11351.5, count 2). In connection with count 2, it was alleged that appellant had a prior conviction of possession for sale of cocaine (§ 11370.2, subd. (a).) As to both counts, the information alleged that appellant had suffered two prior convictions under the Three Strikes Law (Pen. Code § 1170.12, subds. (a) – (d) and § 667, subds. (b) – (i)) and had served five prior prison terms (Pen. Code § 667.5, subd. (b)). Appellant pled “not guilty” and denied the special allegations.
A “Marsden” motion was made and denied by the court on December 20, 2006. The case was called for jury trial. On January 12, 2007, appellant pled “no contest” to count 2, possession of cocaine base for sale, in return for a four-year, middle term state prison sentence with all sentence enhancement allegations stricken.
People v. Marsden (1970) 2 Cal.3d 118, 123.
Appellant was sentenced immediately to the middle term of four years in state prison. He received credit for 157 days of presentence custody, consisting of 105 actual days and 52 days of conduct credit. The court also imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $50 lab fee (§11372.5, subd. (a)), and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1). DNA testing was ordered. (Pen. Code, § 296.)
A timely notice of appeal was filed on March 7, 2007. There is no certificate of probable cause in the record.
We appointed counsel to represent Livingston on appeal. After examination of the record, on February 4, 2008, counsel filed an “Opening Brief” in which no issues were raised. On February 4, 2008, we advised Livingston he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date. We have examined the entire record and are satisfied Livingston’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.) Additionally, because Livingston pleaded no contest and failed to obtain a certificate of probable cause, his notice of appeal is not operative to challenge the judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1096, 1099; People v. Panizzon (1996) 13 Cal.4th 68, 79.) Lastly, Livingston’s “Notice of Appeal” identifies no items of complaint.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section six of the California Constitution.