Opinion
F053435
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEE SCHIELER, Defendant and Appellant
Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
Appellant Edward Lee Schieler was charged with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378). In addition, it was alleged appellant had suffered a strike and two prior convictions of drug offenses listed in Health and Safety Code section 11370.2, subdivision (c), and had served two separate prior prison terms for felony convictions (Pen. Code, § 667.5, subd. (b)).
We use the term "strike" as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On September 13, 2006, pursuant to a plea agreement, appellant pled no contest to simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted the strike allegation and one prior prison term enhancement allegation. Appellant also admitted that by committing the instant offense, he violated probation previously granted in another case.
On April 23, 2007, appellant moved to withdraw his plea, and the court denied the motion.
At the sentencing hearing on May 30, 2007, appellant asked the court to strike his strike pursuant to Penal Code section 1385. The court impliedly denied the request and imposed a prison term of four years, consisting of the two-year midterm, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)).
In addition, the court initially stayed execution of sentence on two prior prison term enhancements. However, as appellate counsel pointed out in a letter to the trial court, enhancements may be stricken or imposed but not stayed (People v. Langston (2004) 33 Cal.4th 1237, 1241), and appellant admitted only one prior prison term enhancement. Thereafter, the court ordered the abstract of judgment amended to correct these errors.
On July 27, 2007, appellant filed a notice of appeal in which he requested a certificate of probable cause. (Pen. Code, § 1237.5). The court denied appellants request.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, in response to this courts invitation to submit additional briefing, has submitted a letter in which he argues, as best we can determine, as follows: he did not commit the instant offense, and the court erred in denying his request to strike his strike and in failing to grant probation pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) (Pen. Code, § 1201 et seq.).
FACTS
According to the report of the probation officer, records of the Porterville Police Department indicate the following. On August 21, 2006, police officers, upon arriving at a residence to execute a search warrant, observed appellant walking in front of the residence. Appellant "was searched and subsequently arrested," and the search revealed, in one of appellants pockets, a quantity of methamphetamine in plastic bags. Appellant admitted to officers the substance was methamphetamine and that he was on parole.
DISCUSSION
Appellant suggests his conviction should be reversed because, he asserts, he did not commit the instant offense. However, appellants plea of no contest constitutes an admission of every element of the instant offense and precludes an appeal of issues concerning guilt or innocence. (In re Chavez (2003) 30 Cal.4th 643, 649.) Therefore, this argument is not cognizable on appeal.
Appellant also suggests the court erred in denying his request that the court strike his strike. There is no merit to this contention.
Penal Code section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a strike, "in furtherance of justice." "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law ... or in reviewing such a ruling, the court ... must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The report of the probation officer indicates appellant has an extensive criminal history dating back to 1980, consisting of numerous felony and misdemeanor convictions and multiple parole violations. The court did not abuse its discretion in refusing to strike appellants strike.
Appellants final contention is that the court erred in not granting him Proposition 36 probation. This contention too is without merit. The three strikes law specifically provides that if a defendant is subject to sentencing under it, "[p]robation for the current offense shall not be granted ...." (Pen. Code, §§ 667, subd. (c)(2), 1170.12, subd. (a)(2).)
Finally, we note that appellate counsel, in the Wende brief he filed on appellants behalf, specifies a number of "potential issues" about which appellant "expressed concern ...." In response to these "potential issues" it will suffice to note that two of them are discussed above, and that we have independently reviewed the record and following that review we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.