Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR483684
Pollak, J.
Defendant Raymond Pastor Salter appeals from a judgment imposing a three-year sentence upon a plea of guilty to one count of possession of methamphetamine and admission of a prior prison term. Defendant’s attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant has been advised of his right to file a supplemental brief and has failed to do so. We find no arguable issue and shall affirm
BACKGROUND
On April 13, 2006, defendant was charged by information with possession for sale of methamphetamine (Health & Saf. Code, § 11378). The information alleged that defendant had been convicted of four prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4), and that he had suffered two prior prison commitments and had not remained free from prison custody for five years subsequent. (Pen. Code, § 667.5, subd. (b).)
Defendant pled guilty to possession of methamphetamine for personal use (Health & Saf. Code, § 11377) and admitted one prison prior. The factual basis for the plea was contained in the police report, which stated that on March 13, 2006, members of the Sonoma County Narcotics Task Force served a search warrant at a residence in Petaluma. There they found defendant, whom they identified as a parolee. In a jacket next to the couch where defendant was lying, the detectives found 26.63 grams of methamphetamine. Defendant admitted that the jacket belonged to him.
Defendant also pled guilty to a separately charged count of reckless driving under the influence of alcohol. (Veh. Code, § 23103.5.) No appeal has been taken regarding this count.
The charge of possession for sale and the second prison prior allegation were dismissed. As part of the plea agreement, defendant acknowledged that he could receive a prison sentence of up to three years for the charged offense plus an additional year for the prison prior, and that he could be assessed a fine of up to $10,000. However, the plea was conditioned upon receiving a sentence of 16 months, the mitigated term, plus 12 months for the prison prior. Defendant agreed that “if pending sentencing I commit another crime, violate any condition of a Supervised O.R. release, or willfully fail to appear for my sentencing hearing, this agreement will be canceled, I will be sentenced unconditionally and I will not be allowed to withdraw my guilty . . . plea[].”
On May 25, 2007, defendant appeared for sentencing. The district attorney informed the court that pending sentencing, a misdemeanor charge had been filed against defendant for having alcohol in his car. Defendant admitted that this was a violation of the terms of his plea agreement. The district attorney argued that defendant should be sentenced to the midterm of two years plus one year for the prison prior. Defendant admitted that he had alcohol in the car but argued that it was only an infraction and asked the court to impose the mitigated term. However, defendant was sentenced to two years for the offense plus one year for the prison prior. He was ordered to pay a restitution fine of $200 plus a $20 court security fee. He was given custody credit for 156 days.
Defendant timely filed a notice of appeal.
DISCUSSION
Defendant’s notice of appeal challenges only his sentence. Our independent review of the record discloses no impropriety in the trial court’s calculation of the sentence. “Penal Code section 1192.5 . . . provides for the entry of a plea of guilty or nolo contendere specifying both the punishment to be imposed and the exercise of other powers legally available to the sentencing court. Upon the acceptance of such a plea by the prosecution and its approval by the court, the statute provides that the court may not impose ‘a punishment more severe than that specified in the plea . . . [nor] proceed as to such plea other than as specified in the plea.’ Before the plea is entered, the court also must inform the defendant ‘that (1) its approval is not binding, (2) it may . . . withdraw its approval in the light of further consideration of the matter, and (3) in such case the defendant shall be permitted to withdraw his plea if he desires to do so. . . .’ ” (People v. Cruz (1988) 44 Cal.3d 1247, 1250, fn. & italics omitted.)
In Cruz the court held that under Penal Code section 1192.5, if the defendant fails to appear for sentencing, the trial court cannot impose a greater sentence than agreed to in the plea bargain. However, the court clarified that it did “not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.” (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) Such a waiver also may be applied where a defendant breaches an agreement not to commit further crimes pending sentencing. (People v. Vargas (2007) 148 Cal.App.4th 644, 648.) Here, defendant does not dispute that he violated the terms of his plea agreement, so that the court could impose a greater sentence than initially agreed within the limits for the admitted offense of which the defendant was advised before entering his plea.
Thus, defendant was properly sentenced to the midterm, rather than the mitigated term, for the offense to which he pled guilty. Moreover, Penal Code section 667.5, subdivision (b) provides that “where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison term therefor, the court shall impose a one-year term for each prior separate prison term served for any felony . . . .”
Defendant was at all times represented by competent counsel. There are no issues that require further briefing.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.