Opinion
NOT TO BE PUBLISHED
Super. Ct. No. FSB703440
ORDER MODIFYING OPINION
King, J.
The opinion filed in this matter on June 12, 2008, is modified as follows:
The last paragraph on page 5 of the opinion, beginning with “Counsel appointed to represent defendant on appeal . . .,” is deleted and replaced with the following:
“Counsel appointed to represent defendant on appeal has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. State of 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 the following arguable issues:
“1. Does this sentencing appeal involving a stipulated sentence following a guilty plea require a certificate of probable cause? (People v. Panizzon (1996) 13 Cal.4th 68, 78.)
“2. Is the appeal waiver on the change of plea form valid? (C.T. p. 18; People v. Panizzon, supra, 13 Cal.4th at pp. 83-84.)
“3. Is the “Cunningham waiver” on the change of plea form valid? (C.T. p. 17.) This was a guilty plea with a stipulated sentence involving an upper term, and on the notice of appeal, the defendant indicated he wished to appeal based, in part, on ‘Cunningham law.’ (C.T. p. 22.) The court did not explain what a ‘Cunningham waiver’ was during the change of plea proceedings, though the defendant told the court he had had sufficient time to go over the form with his attorney and had no questions (R.T. p. 40), and the attorney told the court he had had sufficient time to go over the form with his client, and had reviewed ‘any possible defenses, consequences, punishments of the plea.’ (R.T. p. 44.) The attorney also signed the change of plea form reflecting he had ‘personally read and explained the contents of the above declaration to the defendant.’ (C.T. p. 18.)
“4. Did appellant receive the ineffective assistance of trial counsel? (C.T. p. 22 [notice of appeal alleging ineffective assistance of counsel]; Pen. Code, § 1237.5; People v. Mendoza-Tello (1997) 15 Cal.4th 264, 266-267.
“5. Appellant’s stipulated prison term consisted of a 3 year upper term for possessing methamphetamine for sale, and a consecutive 1/3 midterm of 1 year for possessing it while armed with a handgun. Did the consecutive term violate Penal Code section 654? (Cal. Rules of Court, rule 4.412(b).)”
Except for these modifications, the opinion remains unchanged. These modifications do not effect a change in the judgment.
We concur: Ramirez P.J., Hollenhorst J.