Opinion
A131700
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. EZEQUIEL BECERRA RUVALCABA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC072468)
Appellant Ezequiel Becerra Ruvalcaba appeals from a 32-month state prison sentence he received, subject to local custody credits, following his plea of no contest and his admission of the truth of a special allegation charged against him in criminal cases filed by the San Mateo County District Attorney. Appellant's counsel filed an opening brief in which he raised no issues and asked this court for an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel declares he has advised appellant that no issues were to be raised on appeal, and that an independent review under Wende instead was being requested. Counsel also advised appellant of his right to personally file a supplemental brief raising any issues he chooses to bring to this court's attention, and appellant has not done so.
No certificate of probable cause as required by rule 8.304(b) of the California Rules of Court and Penal Code section 1237.5 was obtained prior to filing this appeal. Ordinarily, an appeal may be taken from a plea of guilty or no contest only if the defendant first seeks and obtains a certificate of probable cause from the trial court. Nonetheless, we have reviewed the entire record in this case in our discretion and in the interest of justice, and find no meritorious issues to be argued, or that require further briefing on appeal.
A criminal information was filed by the San Mateo County District Attorney on December 17, 2010, in San Mateo County Superior Court Case No. SC072468, charging appellant with one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), one count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), and one count of possession of a device used for the smoking of controlled substances (Health & Saf. Code, § 11364)). The information also alleged that appellant had suffered a prior conviction for carrying a concealed weapon and a criminal street gang special allegation (Pen. Code, § 12025, subd. (b)(3), 186.22, subd. (b)(1), a strike within the meaning of Penal Code section 1170.12, subdivision (c)(1).
Appellant initially entered a plea of not guilty, and denied the special allegation.
On January 31, 2011, appellant entered a change of plea pursuant to a negotiated plea bargain with the prosecution. By its terms, appellant agreed to plead no contest to the possession of methamphetamine count and to admit the special allegation relating to his prior conviction, in return for a dismissal of the remaining counts. As part of the bargain, it was agreed that appellant would make a motion to strike the special allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and if the motion were denied, appellant would be sentenced to no more than 32 months in state prison. At the time his change of plea was entered, appellant was represented by counsel. He also was advised of the constitutional rights he was waiving by entering the plea, and he voluntarily and knowingly waived those rights. Upon stipulation of defense counsel, the court found there was a factual basis for the plea.
Another case in San Mateo County Superior Court was then pending against appellant (Case No. SC070235A) alleging a probation violation, which appellant admitted as part of the negotiated plea.
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Thereafter, a written motion to strike the admitted prior strike conviction was made by appellant.
The hearings on the motion to strike and for sentencing were both held on March 11, 2011. At that time, the court denied the motion to strike. Pursuant to the plea disposition, the court then sentenced appellant to the low term of 16 months for the count to which he pleaded no contest, and doubled the sentence under Penal Code section 1170.12, subdivision (c)(1). No additional custody time was imposed for appellant's admitted probation violation in Case No. SC070235A.
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. We discern no error in the sentencing. The refusal to grant probation, and the sentencing choices made by the trial court were consistent with applicable law, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
RUVOLO, P. J. We concur: SEPULVEDA, J. RIVERA, J.