Opinion
A166564
07-12-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES LOWE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. No. 21CR02283-A)
STEWART, P.J.
James Lowe pleaded no contest to one count of conspiracy to commit insurance fraud and one count of possession of cocaine and, pursuant to his plea agreement, was sentenced to two years and four months in state prison. His appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which he raises no issue for appeal and asks this court for an independent review of the record. Counsel attests that he advised Lowe of his right to file a supplemental brief, but Lowe has not done so.
Having examined the entire record in accordance with Wende, we agree with counsel that there are no arguable issues requiring further briefing and affirm.
BACKGROUND
An information filed on May 13, 2022, in case number 21CR02283-A charged Lowe with conspiracy to commit unemployment insurance fraud (Pen. Code, § 182, subd. (a)(1), Ins. Code, § 2101, subd. (a) (count 1); unemployment insurance fraud (Ins. Code, § 2101, subd. (a) (count 2); and perjury (Pen. Code, § 118, subd. (a)) (count 3). It was alleged that Lowe had previously been convicted of two or more felonies within the meaning of Penal Code section 1203, subd. (e)(4).
A felony complaint filed on August 9, 2022, in case number 22CR01980 charged Lowe with one count of transporting, selling or furnishing a controlled substance (Health &Saf. Code, § 11352, subd. (a)), with an allegation that Lowe was released on bail at the time of the offense (Pen. Code, § 12022.1, subd. (b)).
On August 25, 2022, Lowe pleaded no contest to one count of conspiracy to commit insurance fraud (Pen. Code, § 182) and one count of possession of cocaine (Health &Saf. Code, § 11351) pursuant to a plea agreement specifying a prison sentence of two years and four months (the lower term on the conspiracy count and a consecutive one-third middle term on the possession count).
Lowe stipulated to the factual basis for each of the offenses stated by the prosecutor. The factual basis for the conspiracy count was that between August 12, 2020, and March 20, 2021, while incarcerated at the Mendocino County Jail and therefore ineligible to receive unemployment benefits, Lowe provided Amber Ricetti with his personal identifying information and requested that she apply for benefits on his behalf; she did so, knowing that he was ineligible, and made a materially false statement in the course of applying for the benefits by stating that Lowe was eligible. As to the possession count, on or about August 7, 2022, Lowe was contacted by law enforcement in Mendocino County and found to be in possession of 15 baggies containing cocaine, in packaging and amounts consistent with sales, "so he possessed with intent to sell."
On September 22, 2022, the court imposed a two-year, four-month sentence in accordance with the plea agreement. The court awarded 104 days of presentence custody credit, imposed the statutory minimum restitution fine of $300 (Pen. Code, § 1202.4) and $300 parole revocation restitution fine (suspended unless parole revoked) (id., § 1202.45), and permanently stayed the $40 court operations fee (id., § 1465.8) and $30 criminal conviction assessment (Gov. Code, § 70373).
Lowe filed a notice of appeal on November 4, 2022. He had requested a certificate of probable cause, which the trial court had denied on October 28, 2022.
DISCUSSION
Pursuant to Wende, we are required "to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous." (Wende, supra, 25 Cal.3d at p. 441; Anders v. California (1967) 386 U.S. 738.)
The denial of Lowe's request for a certificate of probable cause precludes him from arguing on appeal any issues affecting the validity of his plea. (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188; Cal. Rules of Court, rule 8.304(b)(3).) Lowe did not challenge the denial of his request for a certificate of probable cause by petition for writ of mandate and may not do so on direct appeal. (Castelan, at p. 1188.) As he was sentenced in accordance with his plea agreement, a challenge to his sentence would constitute a challenge to the validity of the plea. (People v. Shelton (2006) 37 Cal.4th 759, 766.)
Our review of the record reveals no arguable issues requiring further briefing.
DISPOSITION
The judgment is affirmed.
WE CONCUR. RICHMAN, J., MARKMAN, J. [*]
[*] Judge of the Alameda Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.