Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Super. Ct. No. 06NF4278
Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
IKOLA, J.
Pursuant to a plea agreement, defendant Ron Lee Simpson pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and admitted he had previously been convicted of a felony, had served a prison term, and had not remained free of both prison custody and the commission of the charged felony offense for a period of five years (Pen. Code, § 667.5, subd. (b)). As agreed, the court suspended imposition of sentence and placed him on probation for three years conditioned on his participation in a Proposition 36 drug treatment. (Pen. Code § 1210 et seq.)
Defendant filed a notice of appeal challenging the “sentence or other matters occurring after the plea,” and “the validity of the plea or admission.” His request for a certificate of probable cause under Penal Code section 1237.5 was denied, however, thereby limiting his appeal to the sentence and “matters involving a search or seizure whose lawfulness was contested pursuant to [Penal Code] section 1538.5.” (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
We appointed counsel to represent defendant on appeal. Counsel filed a brief that set forth the facts. Counsel did not argue against defendant, but advised the court no issues were found to argue on defendant’s behalf and asks that we review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Defendant was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from defendant.
Defendant entered his plea three days after he was arraigned, and before a preliminary hearing was held. Thus, the only facts we have concerning defendant’s offense are those set forth in his plea: “In Orange County, California, on 12/3/06, I unlawfully possessed a useable quantity of methamphetamine.” In his request for a certificate of probable cause, defendant stated the police “pulled me over, for nothing. He ask[ed] me if he could search my jeep. I told him no. However, he went ahead and search[ed] by jeep.” Pursuant to Anders v. California (1967) 386 U.S. 738, counsel suggested we review whether the traffic stop and search violated defendant’s Fourth Amendment rights and whether trial counsel was ineffective for failing to file a motion to suppress. But since defendant did not challenge the traffic stop and search in the trial court, we are unable to review its lawfulness; the matter is not open for review on appeal. “Review on appeal [of the validity of a search] may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for . . . the suppression of the evidence.” (Pen. Code, § 1538.5, subd. (m), italics added.) Similarly, we have no information regarding counsel’s decision not to file a suppression motion. “[T]he burden is on the defendant to show (1) trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citation.] Defendant has not met either requirement.” (People v. Turner 7 Cal.App.4th 1214, 1219 [defendant failed to demonstrate counsel was ineffective for failing to file a suppression motion].)
We have reviewed the transcript of the proceeding at which defendant’s plea was taken and the Tahl forms executed at that time. Defendant was meticulously advised of his constitutional rights and was informed that by pleading guilty he would be waiving those rights. It is manifest that his plea and the waiver of his constitutional rights were knowing, intelligent, and voluntary. His probation, on condition of his participation in a drug treatment program, was precisely what defendant bargained for. There was no error.
In re Tahl (1969) 1 Cal.3d 122.
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J., O’LEARY, J.