Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF150013, Janice M. McIntyre, Judge.
Terrence V. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
Defendant, James Monroe Silvis, was sentenced to state prison pursuant to a negotiated plea agreement providing for a stipulated low-term sentence of 32 months in prison.
BACKGROUND
On November 1, 2008, defendant used a hammer to smash the windows of two motor vehicles. He was subsequently charged with felony vandalism. (Pen. Code, § 594, subd. (b)(1).) It was further alleged that he had previously been convicted of a serious or violent felony within the meaning of the Strikes law. (Pen. Code, § 667, subd. (e)(1).)
On July 23, 2009, defendant pled guilty to the vandalism count and admitted the Strike in return for a stipulated sentence of 32 months (the low term of 16 months doubled for the Strike), which would be ordered to run concurrent with any parole violation. On July 30, 2009, defendant was sentenced to 32 months in prison, in accordance with the plea bargain.
On September 18, 2009, defendant appealed, challenging the validity of his plea. In support of his request for a certificate of probable cause, defendant asserted (1) that his due process rights were violated because his request for discovery was denied, (2) that he was denied effective assistance of counsel by his attorney’s failure to obtain receipts showing the actual cost of damages exceeded $400 to make the vandalism charge a felony. Defendant subsequently obtained a copy of the receipt for repair for one of the damaged vehicles, showing the cost of repair was less than $400. The trial court granted the request for a certificate of probable cause.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and we address the issues presented in defendant’s request for certificate of probable cause.
First, defendant claimed his right to a fair trial was violated because his motion for discovery was denied. This issue was forfeited when defendant pled guilty, because a guilty plea requires an express waiver of the right to a trial. By pleading guilty, a defendant admits the sufficiency of the evidence, so issues which merely go to the guilt or innocence of a defendant are removed from consideration by entry of the plea. (People v. Meyer (1986) 183 Cal.App.3d 1150, 1157-1158.) The issue of the denial of a discovery motion does not raise an issue going to the legality of the proceedings which can be raised on appeal, with the issuance of a certificate of probable cause. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
Second, defendant argues his counsel was ineffective for not challenging the felony nature of the charge filed in the complaint. Counsel was not ineffective because the prosecution was authorized to aggregate the amount of damage to the two vehicles. Although there are some instances where separate acts of misdemeanor vandalism cannot be aggregated to form a felony offense, such as where discrete criminal acts are separate by long stretches of time, multiple instances of misdemeanor vandalism can be aggregated to form a single felony offense unless the evidence shows they were not committed pursuant to one intention, one general impulse, and one plan. (In re Arthur V. (2008) 166 Cal.App.4th 61, 68-69, citing People v. Bailey (1961) 55 Cal.2d 514, 519.) The fact there are multiple victims does not necessarily preclude aggregation. (In re Arthur V. at p. 68, fn. 4.)
Defendant attached a copy of a receipt for the repair of one of the two vehicles he damaged to his request for a certificate of probable case, to support his claim that his crime was a misdemeanor, not a felony. Assuming this receipt constitutes the “amount of defacement, damage or destruction, ” to one of the vehicles, it is not properly presented as an attachment to a notice of appeal. As a reviewing court, we are prohibited from considering information that was not presented to the trial court in the first instance. (People v. Brown (1993) 6 Cal.4th 322, 332; see also, People v. Chi Ko Wong (1976) 18 Cal.3d 698, 711.)
Further, even if we could consider the receipt, it does not mean that defendant should have been charged with two misdemeanors, since the prosecution was authorized to aggregate that amount with the amount of damage to the second vehicle and allege a single felony count. Additionally, defendant’s plea of guilty expressly admitted that the crime he committed was a felony, so he is estopped to challenge that admission on appeal.
We have conducted an independent review of the record and find no arguable issues. Defendant was effectively represented by counsel in the trial court as well as on appeal.
DISPOSITION
The judgment is affirmed.
We concur: McKinster, J., Miller, J.