Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB901483. Michael M. Dest, Judge.
Leslie Ann Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant pled guilty to the crime of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), in return for a stipulated sentence of 16 months in prison.
BACKGROUND
On April 10, 2009, San Bernardino police officers went to defendant’s residence to conduct a probation search. Upon arrival, they informed defendant of their purpose, and defendant submitted to a patdown search which yielded keys to two separate vehicles. Defendant has tattoos and is a documented member of the Five Times Hometown Crips street gang. Because defendant was known to drive both vehicles, the officers proceeded to search each. Officers found several live rounds of ammunition in the first car searched. There were.45-caliber rounds as well as nine-millimeter rounds found in the vehicle. In the second vehicle, an officer located a nine-millimeter Smith and Wesson semi-automatic handgun, with a fully loaded magazine containing 10 rounds, wrapped in a green sweater. The handgun had been reported stolen.
Defendant was charged with being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), count 1), and being an active participant in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) On May 27, 2009, the date set for the preliminary hearing, defendant accepted a plea bargain. Under the terms of the plea agreement, defendant agreed to plead guilty to count 2, active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), in return for a stipulated term of 16 months in state prison, concurrent to any sentence for violation of probation in case No. FSB0704401, and dismissal of two other cases. The plea agreement also included a waiver of the defendant’s right to appeal “from any motion [he] may have brought or could bring and from the conviction and judgment in [his] case since [he is] getting the benefit of [his] plea bargain.” The parties stipulated that the police reports established a factual basis for the plea.
Defendant waived his right to a probation report and requested immediate imposition of sentence. Pursuant to the plea bargain, the court denied probation, and committed defendant to state prison for the low term of 16 months in state prison. This term was designated as the principal term. He was awarded 60 days credit for actual presentence time spent in local custody, plus 30 days of conduct credit (Pen. Code, § 4019), for the principal case. Defendant also admitted violating probation in case No. FSB0704401, and received a similar state prison sentence to the low term of 16 months for that case. He was awarded credits in the amount of 110 days actually served in presentence local custody and 54 days conduct credits for case No. FSB0704401. The sentences were ordered to run concurrent.
On July 20, 2009, defendant filed a notice of appeal following a guilty plea, limited to the sentence or other matters occurring after the plea.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief. In response, he has submitted a letter brief raising the following issues: (1) Trial counsel was ineffective for failing to investigate his claim that he is not a gang member; (2) trial counsel did not explain the sentence credits for the concurrent sentences and he did not understand that one of the concurrent sentences would be completed before the other; and (3) he felt pressured and coerced into pleading guilty.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record. First, we observe that defendant waived his right to appeal from his conviction as an integral term of the plea agreement. Even without the express waiver, he is barred from raising any challenge to his sentence (which was also an integral term of the plea bargain) or to the validity of his plea agreement without first obtaining a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1096; People v. Panizzon (1996) 13 Cal.4th 68, 79.)
Defendant claims his right to effective assistance of counsel was violated by trial counsel’s failure to investigate his case. According to defendant, such an investigation would have revealed he was not a gang member as charged in count 2. However, defendant stipulated that the police reports provided a factual basis for the plea, and those reports indicate defendant is a documented gang member. There is nothing in the record to support defendant’s contrary claim so any challenge to the validity of the plea based on ineffective assistance of counsel must be raised by way of petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Defendant also claims his trial attorney was ineffective for failing to explain the credits awarded on the two cases (the current case and the violation of probation in case No. FSB0704401). There was no ineffectiveness because the sentence imposed was correct and was in conformity with the plea agreement. Defendant was on probation at the time he committed the current offenses and already had custody credits in case No. FSB0704401, so he had more credits on the older case, which will expire earlier than the instant case. A concurrent new term “overlaps” the prior term to the extent service of the earlier sentence is not complete on the day the new term is imposed. But sentences may be concurrent, i.e., may run together, without either starting together or ending together; instead, they run together during the time that the periods overlap. (People v. Bruner (1995) 9 Cal.4th 1178, 1182.)
Defendant asserts he felt pressured and coerced into pleading guilty. Trial counsel is required to advise his or her client of the consequences of either going to trial or pleading guilty. The fact that the defendant may have been persuaded, or was reluctant, to accept a plea bargain does not demonstrate that the plea was involuntary. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919; People v. Hunt (1985) 174 Cal.App.3d 95, 103; People v. Urfer (1979) 94 Cal.App.3d 887, 892.) In other words, mere advice and persuasion by defendant’s own attorney does not suffice to vitiate the plea. (People v. Evans (1960) 185 Cal.App.2d 331, 334.)
Finally, defendant asserts his attorney did not have his interests at heart. This is not apparent from the record so it cannot be raised on appeal. In any event, the Sixth Amendment does not guarantee a “meaningful relationship” between an accused and his counsel (People v. Clark (1992) 3 Cal.4th 41, 100), and does not place counsel under a duty to “make his client happy” by filing futile motions or indulging in idle acts. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253.)
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P. J., King J.