Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR565918
Pollak, Acting P. J.
Defendant Raymond Pastor Salter pled no contest to being a felon in possession of a firearm, participating in a criminal street gang, and possessing an assault weapon. The trial court sentenced him to two years imprisonment, with full credit for time served. 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 was informed of his right to file a supplemental brief, but has not done so. We find no arguable issue and shall affirm.
Our file contains a letter written by defendant and received by this court on April 21, 2011. The letter is undated and is not addressed to an individual, official or office. Defendant states that he is incarcerated in San Quentin (apparently on a separate conviction) and disputes the accuracy of the facts underlying the conviction in this case. Since defendant pled no contest and stipulated to the factual basis for that plea, the sufficiency of the facts to support the conviction is not now subject to review.
Background
Defendant was arrested after police discovered, during a probation search of his girlfriend’s house, photographs of defendant holding what appeared to be an assault rifle. An expert in firearms told police that he believed defendant was pictured holding “a Mini-14 Centerfire rifle.” The expert told police that the weapon in the photograph was modified with a pistol grip and a folding stock, which would classify it as an assault rifle. When defendant was arrested, the police discovered in his bedroom gang paraphernalia from a street gang known as Barbarian Brotherhood.
Defendant was charged by information with being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 1), participating in a criminal street gang (§ 186.22, subd. (a)) (count 2), and possessing an assault weapon (§ 12280, subd. (b)) (count 3). The information alleged that the first count was committed for the benefit of a criminal street gang, under section 186.22, subdivision (b)(1)(A). A prior prison term was alleged under the third count (§ 667.5, subd. (b)). Defendant pled no contest to all three counts and admitted the prior prison term. The parties stipulated to a factual basis for the plea. The court found the gang enhancement to be true.
Further statutory references are to the Penal Code.
Noting defendant’s lengthy criminal record, the fact that he had served prior terms in prison that were not charged in this case, and the fact that he was on parole when the instant crimes were committed, the presentence report recommended that defendant be sentenced to the upper term on all counts, with a consecutive term for count 2 and with punishment stayed for count 3, for a total of seven years eight months imprisonment.
On November 29, 2010, the court sentenced defendant to the midterm of two years on count 1, with a concurrent two years on the remaining counts. He was given credit for 728 days of time served, and the court stated at sentencing that he had therefore completed his sentence. He was ordered to pay a $200 fine, stayed pending successful completion of parole, and to submit a DNA sample pursuant to section 296.
Defendant timely noticed an appeal.
Discussion
Rule 8.304(b) of the California Rules of Court provides that a defendant may not appeal after a plea of guilty or no contest unless he first obtains a certificate of probable cause. This requirement does not apply if the appeal is based on the “denial of a motion to suppress evidence” or “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(A) & (B).) Defendant’s notice of appeal specifies that the “appeal is based on the sentence or other matters occurring after the plea.”
The notice also checks a box indicating that the appeal is based on the denial of a motion to suppress but the record contains no indication that any such motion was ever filed.
The selection of which of three possible terms to impose on a criminal defendant rests in the sound discretion of the trial court. (§ 1170, subd. (b).) The trial court was well within its discretion to impose the midterm of two years. Indeed, the sentence was significantly shorter than that recommended by the probation department and allowed defendant to serve no further time after the date of sentencing.
Section 1202.4, subdivision (b)(1) requires that the court impose a restitution fine of up to $10,000 and not less than $200, at its discretion, in every case in which a person is convicted of a crime. The court did not abuse its discretion in setting defendant’s fine at the lowest possible amount.
Section 296, subdivision (a)(1) requires that any person convicted of a felony submit a DNA sample, and the court was correct in ordering defendant to provide one.
Defendant was at all times represented by competent counsel. There are no issues that require further briefing.
Disposition
The judgment is affirmed.
We concur: Siggins, J.Jenkins, J.