Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare CountySuper. Ct. Nos. VCF166259 & VCF176161. Ronn M. Couillard, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Dawson, J.
Pursuant to a plea agreement covering Tulare County Superior Court case Nos. VCF166259 (case No. 259) and VCF176161 (case No. 161), on January 11, 2007, appellant Monte Staples pled no contest to the following offenses: in case No. 259, one count of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), a felony, and two counts of resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor, and in case No. 161, two felonies, viz. transportation of methamphetamine and possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378, subd. (a), and two misdemeanors, viz. possession of a device used for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)) and driving at a time his driving privilege was suspended (Veh. Code, § 14601.1, subd. (a)). Also pursuant to that agreement, appellant admitted allegations that he had suffered two “strikes,” served a prison term for a prior felony conviction and committed the case No. 161 offense while on bail (Pen. Code, § 12022.1).
We use the term “strike,” in its noun form, 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.
In imposing sentence on February 9, 2007, the court struck the prior prison term and on-bail enhancements; in case No. 161, struck one of appellant’s strikes as to count 1; imposed on that count a prison term of eight years, consisting of the four-year upper term, doubled pursuant to the three strikes law; struck both strikes as to count 2 in case No. 161 and imposed a concurrent three-year upper term; and as to the felony count (count 2) in case No. 259, struck both strikes and imposed a concurrent four-year upper term.
Appellant did not request, and the court did not issue, a certificate of probable cause (Pen. Code, § 1237.5).
Appellant’s 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 has not responded to this court’s invitation to submit additional briefing.
The factual statement is taken from the report of the probation officer.
Case No. 259
On June 19, 2006, at 3:00 a.m., police officers conducting a surveillance of a residence “pertaining to possible drug activity,” saw several persons get into a car parked in the driveway of the residence and drive away. Officers effected a stop of the car, and as appellant, who had been driving, got out of the car, an officer “observed a clear plastic bag extending from [appellant’s] pant’s pocket.” The officer “retrieved the plastic bag” and saw that it contained several more clear plastic bags. When the officer stated it appeared he had found drugs, appellant stated all of the bags were empty. At that point, the officer attempted to place appellant in hand restraints, but appellant “pulled his right arm away” and “attempted to run.” A struggle ensued, during which the officer tackled appellant. At that point another officer “arrived and assisted,” but appellant “continued to resist.” Eventually, more officers arrived on the scene and appellant was taken into custody. “[T]he plastic bag” contained “methamphetamine weighing a total of 1.56 grams.” Appellant admitted having methamphetamine in his possession, and estimated the amount to be less than one gram.
Case No. 161
On November 8, 2006, Tulare County Sheriff’s Department deputies received an anonymous tip that appellant was “selling and[/]or distributing narcotics.” On December 28, 2006, “deputies received information that [appellant] was en route to Fresno to deliver narcotics” and thereafter observed appellant driving along Highway 99. Appellant saw the deputies and “reach[ed] for the center console to hide something.” Deputies effected a traffic stop. Appellant refused to get out of the car, but the officers “physically remove[d]” appellant and arrested him. Deputies searched appellant and on his person found a “large bindle containing methamphetamine.” In the car, deputies found a “small plastic bindle containing methamphetamine[,] . . . a digital gram scale, packaging material, two glass smoking pipes and multiple cellular telephones.”
DISCUSSION
Because the court imposed upper terms in both case No. 259 and case No. 161, we note the following. The court based its imposition of the upper terms, in part, on its finding, supported by the record, that appellant had suffered five prior felony convictions. The imposition of an upper term based on such a finding does not violate a defendant’s right under the United States Constitution to trial by jury. (People v. Black (2007) 41 Cal.4th 799, 813, 819-820.)
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.