Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD201987, David Danielson, Judge.
AARON, J.
Peter Lomax entered a negotiated guilty plea to one count of selling or furnishing cocaine (Health & Saf. Code, § 11352, subd. (a)) and an admission that he had a prior serious/violent felony or "strike" conviction (Pen. Code, § 667, subds. (b)-(i)). The trial court sentenced Lomax to six years in prison, the lower term of three years for the cocaine count, doubled under the Three Strikes Law.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On October 4, 2006, deputy sheriff Michael Spears was acting in an undercover capacity when Lomax walked out of a convenience store and asked Spears what he needed. Spears replied that he wanted to purchase $20 worth of cocaine. Lomax said that he would get it from his nephew and directed Spears to follow him. Lomax asked Spears if he would buy him a 99-cent beer after the deal. Lomax and Spears approached a group of people. Lomax talked to the codefendant, who gave Lomax a piece of cocaine base. Lomax then gave his codefendant the prerecorded $20 bill that Spears had given him earlier. Lomax and Spears walked away. When Lomax handed the deputy sheriff the cocaine, Spears signaled to other deputies to arrest him.
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 Lomax's guilty plea was constitutionally valid; (2) whether Lomax was properly advised that he could receive a six-year prison sentence under the plea agreement; and (3) whether the trial court abused its discretion when it declined to strike Lomax's prior serious/violent felony conviction.
We granted Lomax permission to file a brief on his own behalf. He has responded.
First, Lomax claims that he was sentenced under a "different" sentencing guideline than the one that was discussed when he pleaded guilty. Lomax complains that his attorney told him he could receive probation, the low term of 16 months, the mid term of two years, the upper term of three years, or, at maximum, six years. The record does not contain evidence of what counsel told Lomax. However, assuming that counsel told Lomax the correct sentencing ranges for his crime (see fn. 2, ante), then it appears that Lomax was told that under the plea agreement he could receive probation, the low term of three years, the mid term of four years, the upper term of five years, or a maximum term of six years. The first four of those alternatives were based on the possibility that the court might grant a Romero (People v. Romero (1996) 13 Cal.4th 497) motion to strike the prior serious/violent felony conviction. The fifth alternative was based on the court denying the Romero motion. If counsel did advise Lomax as to the consequences of his guilty plea in this manner, counsel gave him correct information.
We note the sentencing range for selling cocaine is three years, four years and five years. (Health & Saf. Code, § 11352, subd. (a).)
Lomax also complains that at the sentencing hearing, the range of sentences that were discussed was six, eight and 10 years in contrast to what he was told at the change of plea hearing. However, the record shows that before Lomax entered his guilty plea, the court asked him if he was aware that the maximum term of prison he could receive for his crime with the strike conviction was 10 years, and Lomax replied that he was. Also, on the change of plea form, Lomax acknowledged that the maximum prison term he could receive was 10 years. Lomax's current objection essentially overlooks that he pleaded guilty to an offense that has a sentencing range of three, four or five years and that he admitted he had one prior violent/serious felony conviction, which by operation of law would double the sentence for the offense. (§ 667, subd. (e)(1).) Because the court denied Lomax's Romero motion, the sentence imposed for the offense of selling cocaine was doubled under the Three Strikes Law. (Ibid.) Furthermore, the court honored the sentencing lid provision of the plea agreement by doubling the low term of three years for the cocaine offense, and imposing a sentence of six years.
Second, Lomax claims that the abstract of judgment incorrectly reflects that he has two prior strike convictions. The abstract of judgment indicates that Lomax was sentenced under "PC [section] 667[, subdivisions] (b)- (i) or PC [section] 1170.12 (two strikes)." However, the significance of the "two strikes" reference is that the instant offense is Lomax's second strike, which is correct. (§§ 667, subd. (d)(1) & 1192.7, subd. (24).) Lomax was not sentenced as though he had suffered two prior serious/violent felony or strike convictions; if he had been, he would have received an indeterminate sentence of 25 years to life. (§ 667, subd. (e)(2(A)(ii).)
Third, Lomax claims that he was on medication at the time of the change of plea hearing and that his trial counsel pressured him to plead guilty rather than seek a continuance. The record belies Lomax's complaint that the plea was not voluntary because of his medication.
On the change of plea form, Lomax initialed the box that stated he was sober, his judgment was not impaired, and he had not consumed any drugs, alcohol or narcotics within the past 24 hours. Next to this preprinted statement, Lomax printed "on meds from jail." The court inquired as follows:
"THE COURT: What kind of medication are you taking?
"DEFENDANT LOMAX: For my[] skin, post-traumatic stress disorder, Resbatol (Phonetic) and Tra[z]adone.
"THE COURT: Okay. That stuff is pretty powerful?
"DEFENDANT LOMAX: Been on it ten years, sir.
"THE COURT: You're used to it?
"DEFENDAND LOMAX: Yes, sir.
"THE COURT: Okay. Have you been getting the same consistent dosage since you've been in?
"DEFENDANT LOMAX: On the outside they gave me more, sir.
"THE COURT: But since you've been in you've been getting less?
"DEFENDANT LOMAX: Yes, sir, but, they give it to me different, twice a day instead of three times a day.
"THE COURT: As far as you're concerned is the medicine working?
"DEFENDANT LOMAX: Yes, sir.
"THE COURT: And the medicine is designed to help you think more clearly and function in a way that would free you from some symptoms of your illness?
"DEFENDANT LOMAX: Yes, sir.
"THE COURT: It's okay for you?
"DEFENDANT LOMAX: Yes, sir your, honor.
"THE COURT: Those meds have side effects; are you suffering from any?
"DEFENDANT LOMAX: Not today. Sometimes I get a lot of headaches and they call it anxious or something.
"THE COURT: But so far today you're relatively free from the side effects?
"DEFENDANT LOMAX: Yes, sir."
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel and those Lomax raises, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Lomax on this appeal.
We reach this conclusion even though appellate counsel misstated the allegations contained in the information. In his supplemental brief, Lomax included a copy of the second page of counsel's Wende brief, which stated that the information filed against Lomax alleged that, among other things, he had a prior conviction for the sale or furnishing of cocaine base within the meaning of Health and Safety Code section 11370.2 subdivision (a). Lomax disputed this statement, as well he should. It was incorrect. The information alleged that Lomax's codefendant—not Lomax—had a prior conviction for the sale or furnishing of cocaine base. The misstatement was not prejudicial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.