Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202738, David J. Danielsen, Judge.
BENKE, Acting P. J.
Pursuant to a plea bargain, James Bradley Martin was sentenced to a six-year prison term for selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). He appeals, arguing it was improper to use the prior conviction in calculating his sentence. We affirm.
All further statutory references are to the Health and Safety Code unless otherwise specified.
BACKGROUND
On November 8, 2006, appellant sold cocaine base to a San Diego police officer who was working undercover.
On December 7, 2006, the District Attorney for San Diego County filed an information charging appellant in count 1 with selling cocaine base in violation of section 11352, subdivision (a). In count 2 he was charged with possessing cocaine for sale, in violation of section 11351.5. Pursuant to Penal Code sections 667.5, subdivisions (b) through (i), and 1170.12, the information alleged one prior strike conviction. Pursuant to Penal Code section 667.5, subdivision (b), it was also alleged he served three prior prison terms.
Appellant entered a plea of guilty to count 1 and admitted the prior strike conviction. He agreed to waive his right to appeal any issues related to the strike priors and any stipulated sentence. The prosecution in return agreed to a prison term of six years, dismissal of count 2 and dismissal of the remaining allegation that he served three prior prison terms. Immediately following the change of plea, appellant was sentenced to the stipulated six-year sentence, consisting of the lower term of three years on count 1 doubled under the "three strikes" law provision.
Appellant filed an amended notice of appeal on March 26, 2007. He also requested a certificate of probable cause.
On April 2, 2007, the trial court denied appellant's request for a certificate of probable cause.
On April 18, 2007, this court issued an order limiting the questions on appeal "to sentencing questions or other matters occurring after the plea, except for issues involving prior strike convictions and the stipulated sentence."
Appellant's sole issue presented on appeal is that the prior conviction from the state of Maryland, which resulted in the doubling of his three-year sentence, is not equivalent to a California prior serious felony robbery conviction under Penal Code section 667 because the least adjudicated elements of the Maryland conviction do not require intent to "permanently deprive." He acknowledges that he waived his right to appeal this issue but asserts this court has allowed him to challenge the prior conviction.
By way of a footnote, appellant asserts his trial counsel was ineffective.
We conclude appellant has waived his right to appeal the prior, and this court did not release appellant from that restriction. Moreover, we conclude appellant has not properly raised his contention that his counsel was ineffective, but in any event ineffectiveness has not been demonstrated.
ANALYSIS
A defendant may enter a guilty plea in exchange for specific benefits such as the dismissal of other counts or an agreed upon maximum sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 80-81.) As part of such an agreement a defendant may legally waive the right to appeal. (Ibid.; People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.) Both parties to such an agreement may expect that the terms of the agreement will be enforced. (People v. Collins (1978) 21 Cal.3d 208, 214.)
The plea agreement entered into by appellant is clear. As the change of plea form reflects, in return for a stipulated six-year sentence, appellant initialed the following waiver clause: "I give up my right to appeal the following: . . ., 2) issues related to strike priors (under PC sections (b)-(i) and 1170.12), and 3) any sentence stipulated herein."
Appellant asserts this court lifted the waiver of appeal restriction when it permitted appellant to file his appeal. We disagree. By order dated April 18, 2007, this court observed appellant waived issues related to the prior strike convictions. We limited issues on this appeal to sentencing questions or other matters occurring after the plea except for issues involving prior strike convictions and the stipulated sentence. On its face the order allows appellant to raise post sentencing issues but not if they relate to the prior strike convictions. Nothing in the order eliminates or limits appellant's waiver. In any event the order would not preclude this court from examining appellant's argument on appeal, and determining the issue raised by appellant does, indeed, contravene the agreement he made in court at the time he changed his plea.
On the record before us, allowing appellant to challenge the validity of the Maryland prior clearly contravenes the express written agreement he made at trial, an agreement which assisted him by reducing his possible sentence. The validity of the Maryland prior was a matter which should have been litigated at trial where an adequate record could be made for our review and all parties, and the trial court, would have had a chance to fully explore the issue. Appellant decided not to do so in return for the sentence he received.
Alternatively, appellant alleges that his counsel was ineffective for allowing him to admit a defective prior conviction. We note his argument is two sentences long and is made in a footnote on the last page of his brief. It does not conform to appellate rule requirements.
In anybrief each point must appear separately under an appropriate heading or subheading, summarizing the point to be made and supporting each point with argument, and, if possible, citation to authority. (Cal. Rules of Court, rule 8.204 (a)(1)(B); In re S. C. (2006) 138 Cal.App.4th 396, 408.) If a brief does not comply with this rule, the court may disregard the noncompliance, but it may also take other action, including ordering the brief returned for compliance or declining to file the brief. (Cal. Rules of Court, rule 8.204 (e).) The court may also disregard and deem waived arguments not properly segregated and argued under appropriately discrete headings. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345; Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695; also Paterno v. State of California (1999) 74 Cal.App.4th 68, 76.)
Were the record in this case longer, or the legal issues more complex, we might conclude the issue of ineffective counsel is waived. However, because appellant presents the barest of support for his argument that counsel was ineffective, and because this record is short and reflects that appellant's plea bargain operated tactically to reduce his sentence exposure, we conclude counsel was effective. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., IRION, J.