Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07902728. Jonathan B. Conklin, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.
OPINION
PROCEEDINGS
Appellant, Michael Shay Thomas, was charged in an information filed May 1, 2007, with robbery (Pen. Code, § 211, count one), assault by means likely to produce great bodily injury with a firearm (§ 245, subd. (a)(2), count two), assault likely to produce great bodily injury (§ 245, subd. (a)(1), count three), and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a), count four). The information alleged as to count one that Thomas personally used a firearm (§ 12022.53, subd. (b)). The information further alleged that Thomas had a prior serious felony conviction within the meaning of the three strikes law.
Unless otherwise specified, all further statutory references are to the Penal Code.
On June 7, 2007, Thomas entered into a plea agreement in which he would admit the robbery allegation of count one and the prior serious felony conviction with an indicated sentence of three years. Thomas’s probation would be terminated in an earlier action and another action would be dismissed. Thomas acknowledged having enough time to talk to his attorney. Thomas stated he reviewed, understood, signed, and initialed the change of plea form.
Thomas executed a felony advisement, waiver of rights, and plea form. The terms of the proposed plea agreement were that Thomas would admit count one, the robbery allegation, and the prior serious felony conviction allegation, the court would impose the midterm of three years and strike the prior serious felony allegation, another action would be dismissed, and Thomas’s probation would be terminated. Thomas agreed the police reports would form the factual basis for the plea.
The court reviewed the consequences of the plea with Thomas. The court advised Thomas of, and Thomas waived, his constitutional rights pursuant to Boykin/Tahl. Thomas pled no contest to robbery as charged in count one and admitted the prior serious felony conviction. The court dismissed the other, pending action and terminated Thomas’s probation.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On July 6, 2007, the trial court sentenced Thomas to the midterm of three years on count one and exercised its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the prior serious felony conviction allegation. Thomas was awarded applicable custody credits and ordered to pay a restitution fine. Thomas sought, and obtained from the trial court, a certificate of probable cause.
Thomas’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Thomas was advised he could file his own brief with this court. By letter on November 14, 2007, we invited Thomas to submit additional briefing.
Thomas replied with a handwritten letter asserting he was not aware that he had to serve 85 percent of his sentence because of a limitation on custody credits and that the trial court failed to advise him of this consequence of his plea. Appellant further asserts that his trial counsel lied to him about the plea agreement, representing to him that he would receive 50 percent custody credits.
Thomas sent two letters raising this issue which were filed with this court on October 11, 2007, and on November 27, 2007.
FACTS
Fresno Police Officer Cory Taylor testified at the preliminary hearing that on March 20, 2007, he and Officer Mike McCray were dispatched to investigate the robbery of David Palms. When they contacted Palms, he had a laceration on his head. He told the officers he had been robbed by four or five people. One of the assailants called to Palms by his first name. One of the assailants charged Palms and told him to break himself, meaning he was going to be robbed.
Thomas, who Palms knew as Shay, pulled a handgun from his waistband and struck Palms over the head with it. The robbers went through Palms’s pockets. Palms discovered his wallet missing after the attack. Palms had about $400 in his wallet. Palms’s girlfriend witnessed the attack and recognized Thomas as one of the robbers. She also identified codefendant Lewis as one of the robbers. Lewis and Thomas were later arrested. Palms’s girlfriend identified them during an “in-field show up.”
DISCUSSION
Thomas is making two related contentions. First, the trial court failed to advise him of the statutory limitation on his custody credits which he asserts is a direct consequence of his plea. (See § 2933.1.) Second, Thomas asserts his trial counsel misinformed him concerning the issue of custody credits, causing him to be “tricked and deceived” into believing he would received 50 percent custody credits. (10/11/07 letter.)
Thomas’s first contention was resolved by the California Supreme Court in People v. Barella (1999) 20 Cal.4th 261, 271, 272 (Barella). In Barella, the defendant contended he was not informed of the four-fifths limitation on custody credits as a consequence of his plea. (Id. at p. 264.) Traditionally, the direct consequences of a plea are those that inexorably follow from the plea. Barella held that conduct and work credits depend on a prisoner’s behavior and the availability of work programs in a particular prison. A trial court does not err, therefore, in failing to explain conduct credit limitations to a defendant prior to accepting the defendant’s plea. (Id. at pp. 270, 272.) We are bound by the holdings of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Thomas also argues that he was misinformed or misled by his trial counsel on the issue of how he would be entitled to custody credits in prison. What trial counsel did or did not tell Thomas on the issue of custody credits, however, is not part of the record on appeal. Argument that relies upon matters outside the record may not be considered on appeal. (See People v. Smith (2007) 40 Cal.4th 483, 507; People v. Allen (1999) 21 Cal.4th 424; 439; People v. Barnett (1998) 17 Cal.4th 1044, 1183.) Because we have no record of what trial counsel told Thomas, if anything, on the topic of custody credits, we cannot review the matter on direct appeal. Thomas may pursue the remedy of filing a petition for writ of habeas corpus on the question of whether his counsel misrepresented how he could accrue custody credits in prison with a robbery conviction. Should Thomas choose to do so, his petition must first be filed in Fresno County Superior Court -- not here. (In re Hillery (1962) 202 Cal.App.2d 293, 294.)
We find no other infirmity with the trial court’s advisement of rights or the consequences of Thomas’s plea. There was a factual basis for the plea from the preliminary hearing transcript and Thomas stipulated in the change of plea form that the police reports could serve as the factual basis for his plea. Thomas received the sentence for which he bargained, as well as the dismissal of three other felony allegations and another criminal action.
Thomas’s plea establishes the elements of the robbery offense he admitted. A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)
After independent review of the record, we conclude there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.