Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62085917A
MURRAY, J.
Defendant Felipe Ortega entered a negotiated plea of no contest to one count of carjacking while personally using a firearm and three counts of assault with a semiautomatic firearm. He also admitted that Placer County had jurisdiction over all the offenses, that he had served three prior prison terms, and that he had a prior conviction for a serious felony. The trial court sentenced defendant to the prison term stipulated in the plea, and dismissed the balance of the information. It limited the presentence conduct credits to 15 percent of defendant’s custody because carjacking is a violent felony. (Pen. Code, §§ 667.5, subd. (c)(17), 2933.1, subd. (a) [imposing this limitation on conduct credits “[n]otwithstanding any other law”].)
Defendant’s ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
The parties stipulated to the following factual basis for the pleas and admissions (which we supplement with the summary of the police reports in the probation report).
On November 22, 2008, defendant and an accomplice, who were in a Lincoln Navigator, followed an individual (the victim) who was driving home from a downtown Sacramento nightclub. When the victim parked his Chevy Silverado pickup, defendant exited the Navigator and confronted the victim with a firearm and took the vehicle and other property.
On November 30, 2008, defendant and his accomplice again followed a vehicle (a Chevy SUV) from a Sacramento nightclub. There were three occupants in the SUV. When the victims parked the SUV in Rocklin, defendant got out of his vehicle, stepped into their lane of traffic and pointed a handgun at them. One round hit the windshield of the SUV. Two spent shell casings were later recovered from the scene.
Officers from the Rocklin Police Department responded to the scene after receiving a call from one of the victims. While en route, one of the officers saw the suspect vehicle leaving the area and a felony arrest was made. Defendant and his accomplice, along with a third person, were arrested. The accomplice had a loaded magazine on her person, which fell to the ground when she exited the vehicle. At the time of her arrest, the accomplice had a wallet, keys and cell phone on her person that had been taken from the victim of the November 22 carjacking.
Defendant had a 2006 conviction for assault with a deadly weapon. This resulted in a prison term. Defendant also had two other prison terms in 2003 and 2004.
The original complaint charged defendant only with offenses relating to the second group of victims, to which defendant had entered pleas of not guilty. The prosecutor moved to amend the complaint to add the charges relating to the first victim. The trial court granted the motion. Following the preliminary hearing, the magistrate held defendant to answer and deemed the amended complaint to be the information, to which defendant entered a plea of not guilty.
After the matter had been assigned for trial, the parties met with the court in chambers and reached the plea resolution we described above. At the following hearing, the court first verified that defendant did not need an interpreter’s assistance. Before accepting his pleas and admissions, the court then determined that defendant had voluntarily and intelligently waived his constitutional rights and had entered his change of plea after consultation with counsel, and it confirmed that defendant understood the court’s explanation of the consequences of his plea as set forth in the plea form he had executed.
At the time of sentencing, the trial court asked defendant about a motion it had received from him for substitution of appointed counsel. Defendant confirmed that he was withdrawing the motion.
In connection with the sentence we have summarized above, the trial court also imposed a restitution fine (and imposed and stayed a parole revocation restitution fine) of $5,000 each, and an assessment of $30 per count for court security. (Pen. Code, § 1465.8.)
We granted defendant’s motion to deem his notice of appeal to be timely filed. The trial court granted his application for a certificate of probable cause (CPC).
We appointed appellate counsel for defendant. Counsel has filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant.
In connection with his request for a CPC, defendant alleged a host of complaints about ineffective performance of trial counsel. Almost all rest on facts outside the record regarding the merits of the case against him and thus are not cognizable on direct appeal. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 334(2), pp. 385-386; People v. Pope (1979) 23 Cal.3d 412, 426 & fn. 17.) In any event, none of the instances he described implicate the validity of the plea itself. The sole exception is his claim counsel should have asked the trial court to exercise its discretion to strike his prior conviction solely for purposes of conduct credits. Given the extent of his criminal record and the nature of the present offenses reflected in his probation report, we can presume that counsel reasonably concluded this would have been a frivolous request. (Pope, supra, 23 Cal.3d at p. 426; People v. McPeters (1992) 2 Cal.4th 1148, 1173.) Moreover, it is his present conviction for carjacking that precludes him from any additional conduct credit. We have otherwise undertaken an examination of the entire record, and do not find any arguable error that would result in a disposition more favorable to defendant.
This issue is presently before the Supreme Court in People v. Jones (2010) 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135, and People v. Koontz (2011) 193 Cal.App.4th 151, review granted May 18, 2011, S192116.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., HULL, J.