Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA309852, Steven R. Van Sicklen, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Donald L. Nelson appeals from a judgment entered following his guilty plea to petty theft with prior convictions (Pen. Code, § 666) and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a) – (d) and 667, subds. (b) – (i).) Pursuant to the negotiated plea, count 1, second degree robbery (Pen. Code, § 211) and count 2, second degree commercial burglary (Pen. Code, § 459) were dismissed pursuant to Penal Code section 1385, and he was sentenced to prison for the low term of 16 months, doubled by reason of the Three Strikes law. Appellant was given credit for 184 actual days plus 92 days conduct credit for a total of 276 days and ordered to pay a victim restitution fine of $200 plus a $200 parole revocation fine, which was stayed. The court agreed to make a finding that this was a drug-related case and to recommend that appellant be sent to a prison facility with a drug program.
The amended information also alleged that appellant suffered five felonies within the meaning of Penal Code section 1203, subdivision (e)(4), served five prison terms within the meaning of Penal Code section 667.5, subdivision (b) and suffered a prior conviction of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1).
Immediately after sentencing, appellant stated he did not wish to take the “deal” and that he had “changed [his] mind.” He stated he was not comfortable with it and that his family “manipulated [him] to take it and . . . was never comfortable with it from the very beginning.” The court read out loud the transcript of the plea where appellant acknowledged he was entering his plea freely and voluntarily, that he had not been forced or pressured, and that he had talked to his attorneys and decided the plea was in his best interest and then stated appellant’s motion to change his mind was denied.
Appellant’s request for a certificate of probable cause was denied.
In support of the issuance of the certificate of probable cause, appellant stated he had negotiated for probation and held out hope that he would get probation; he had legal cause to withdraw his plea and the judgment should have been deferred pursuant to Penal Code section 1191; at the time of his plea, he did not know he would have to serve 80 percent of his time; the prosecution should have been required to prove his strike conviction. Appellant also claimed he received ineffective assistance of counsel in that: his counsel led him to believe he could withdraw his guilty plea after a 30-day extension of time before sentencing; defense counsel led him to believe he could get probation; counsel failed to advise him of all his rights; and counsel abused the attorney-client privilege.
The evidence at the preliminary hearing established that on September 26, 2006, at approximately 5:00 p.m., Eric Torres was working at a Ralph’s Market on Wilshire Boulevard in Los Angeles when he saw appellant put a bottle of liquor in his pants and walk out of the store without paying for it. Another Ralph’s employee, Rodrigo Mora, approached appellant, and appellant swung at him with a closed fist. During a scuffle, a bottle of liquor fell to the ground and broke. Mr. Mora and Mr. Torres brought appellant to the ground and handcuffed him. When police arrived, they recovered another bottle of liquor from inside appellant’s pants. The court received a 12-page document, a certified rap sheet showing that in case number GA006622 on August 20, 1991, appellant was convicted of burglary in violation of Penal Code section 459.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 19, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist. Having failed to obtain a certificate of probable cause, appellant is precluded from claiming his plea was induced by misrepresentations (see People v. Panizzon (1996) 13 Cal.4th 68, 76) or ineffective assistance of counsel (see People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) Further, his challenge to the validity of his sentence which was part of his negotiated plea is a challenge to the plea requiring a certificate of probable cause. (See People v. Panizzon, supra, 13 Cal.4th 68, 76-78.) Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.