Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064127A
Margulies, J.
Richard Lamar Stamper appeals from a judgment following his plea of nolo contendere and imposition of sentence. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplement brief with the court. Defendant has filed a supplemental brief in which he raises the issue of ineffective assistance of counsel. Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm the judgment.
Defendant filed a motion to augment the record with a newspaper article regarding a lawsuit filed by four officers against a sergeant in the Menlo Park Police Department and the city for racial discrimination. The motion is denied. The article is inadmissible hearsay and irrelevant.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from a nolo contendere plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation report.
A complaint was filed on July 9, 2007, charging defendant with felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 1) and misdemeanor attempting to conceal/destroy evidence (Pen. Code, § 664/135; count 2).
All further references are to the Penal Code unless otherwise specified.
Officers contacted defendant in Menlo Park at 12:38 a.m. Due to previous contacts with defendant, the officers were aware that he was on parole with a search clause. The officers conducted a parole search and when defendant removed his right shoe, they observed a white paper bindle fall out onto the asphalt. Defendant kicked the bindle under the patrol car engine. The officers recognized the substance as cocaine base. During questioning, defendant admitted that his intent was to trade the “ ‘rock cocaine’ ” for sex.
Pursuant to a negotiated disposition, defendant pleaded nolo contendere to felony possession of cocaine in exchange for a term of no more than two years in state prison and dismissal of count 2.
The court denied defendant probation based on defendant’s criminal record dating back to 1982 and his poor performance in drug treatment programs. Defendant was sentenced to the low term of 16 months with total custody credits of 60 days. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a corresponding suspended parole revocation restitution fine, and a $20 court security surcharge (§ 1465.8). Defendant was ordered to provide a DNA sample (§ 296, subd. (a)) and to register as a narcotics offender (Health & Saf. Code, § 11590).
Defendant filed a timely appeal challenging the validity of the plea.
II. DISCUSSION
“[S]ection 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 766.) Attached to defendant’s notice of appeal filed in the San Mateo County Superior Court on October 4, 2007, is a request for certificate of probable cause. The trial court in an undated order denied defendant’s request and no certificate of probable cause was ever issued. We are unable, however, to determine from the record whether the request was timely denied. (See Cal. Rules of Court, rule 8.304 [the superior court must sign and file either the certificate of probable cause or an order denying it within 20 days after defendant files a statement].)
Nonetheless, even if the trial court had granted defendant’s request for a certificate of probable cause entitling him to obtain review of the validity of the plea on appeal, our review of the record, and particularly the transcript of the negotiated plea, leads us to conclude that defendant was thoroughly and accurately advised by the court and his counsel of the constitutional rights he would be waiving and the direct consequences of his plea. Defendant expressly waived his constitutional rights and knowingly and voluntarily pleaded nolo contendere. We find nothing in the record to indicate that defendant lacked competence or understanding to enter the plea.
We further note that defendant’s statement in support of his request for a certificate of probable cause does not state any grounds going to the legality of the proceedings.
Defendant was represented by counsel throughout the proceedings. Nothing in the record suggests that defendant received ineffective assistance of counsel. The trial court did not abuse its discretion in sentencing the defendant to the low term of 16 months in state prison given defendant’s criminal record and prior poor performance in drug treatment. There are no issues that require further briefing.
The judgment is affirmed.
We concur: Marchiano, P.J. Swager, J.