Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR071902BS & CR072498DS
Margulies, J.
Jason Brent Tidwell appeals from a judgment following his plea of guilty 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 supplemental brief with the court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from two guilty pleas, 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 April 20, 2007, in Humboldt County (case No. CR071902B), charging defendant with various drug related offenses including possession of a controlled substance for sale. (Health & Saf. Code, § 11378.)
A little over a month later on May 22, 2007, a second complaint was filed in case No. CR072498D charging defendant with various offenses, again including possession of a controlled substance for sale. (Health & Saf. Code, § 11378.)
In case No. CR071902B, a California Highway Patrol officer stopped a vehicle in which defendant was a passenger for erratic driving. The driver was arrested after he showed signs of intoxication. The officer observed a small plastic bag on the driver’s seat containing suspected methamphetamine. While searching Tidwell, the officer seized three small plastic bags of methamphetamine totaling 12.8 grams, a small plastic bag of marijuana, and other drug paraphernalia.
In case No. CR072498D, Humboldt County drug task force agents executed a search warrant on defendant’s residence, car, and person. A search of defendant’s vehicle revealed 95 Vicodin tablets, 12.95 grams of methamphetamine, and drug paraphernalia. During the search of his residence, the agents discovered 12.64 grams of marijuana bud, a police scanner, packaging material, two methamphetamine pipes, and drug paraphernalia.
Pursuant to a negotiated disposition, defendant entered guilty pleas in both cases to one count of possession for sale. On June 20, 2007, the court denied probation and imposed the upper term of three years for the possession for sale offense in case No. CR071902B, and a consecutive one-third the midterm sentence of eight months for the possession for sale offense in case No. CR072498D. In imposing the upper term, the court found that defendant had been previously convicted of two felonies, possession of a controlled substance for sale and a firearm violation, and also focused on defendant’s prior record, which included both juvenile and misdemeanor offenses and “numerous” probation violations. Defendant received 35 actual custody credits in addition to 16 good conduct credits in case No. CR071902B, for a total of 51 days of presentence credits. The court in case No. CR071902B imposed a $600 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a corresponding suspended parole revocation restitution fine (Pen. Code, § 1202.45). In case No. CR072498D, the court imposed a restitution fine of $200 and suspended the parole revocation restitution fine.
On July 9, 2007, criminal proceedings were suspended and defendant was committed to the California Rehabilitation Center in each case.
DISCUSSION
We have reviewed the record on appeal. By entering pleas of guilty, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal. App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his pleas; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress evidence or issues relating to matters arising after the pleas were entered. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) Defendant did not obtain a certificate of probable cause.
Defendant was represented throughout all of the proceedings by counsel. Defendant entered his pleas after being advised of his rights and the consequences of his pleas.
We find no sentencing errors, including the imposition of the upper term, which would require reversal of the judgment. In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that imposition of an upper term sentence does not violate a defendant’s right to a jury trial where “at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term.” (Id. at pp. 805–806.) The court further held that the Sixth Amendment does not include the right to a jury determination on the fact that prior convictions occurred, or “other related issues that may be determined by examining the records of the prior convictions.” (Black, at p. 819, fn. 8.) The imposition of the upper term sentence was affirmed where a sentencing brief and probation report listed, as an aggravating circumstance, that defendant’s prior convictions were “numerous or of increasing seriousness.” (Id. at p. 818, fn. 7.) As in Black, defendant here is eligible for the upper term by virtue of his numerous prior convictions summarized in the probation report. The probation report, which was “read and considered” by the court, listed two prior felony convictions and 12 misdemeanor convictions.
We find no arguable issues that require further briefing and accordingly, affirm the judgment.
We concur: Stein, Acting P.J., Swager, J.