Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. 2006002207
California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
GILBERT, P.J.
Fred Edward Topper III appeals a judgment of conviction entered after he pled guilty to one count of selling methamphetamine and admitted suffering a prior narcotics conviction and serving a prior prison term. (Health & Saf. Code, §§ 11379, subd. (a), 11370.2, subd. (a); Pen. Code, § 667.5, subd. (b).) We appointed counsel to represent him in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.)
On November 14, 2007, we advised Topper that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We received a response from him contending that imposition of sentence enhancements violates constitutional principles of double jeopardy. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case, and a brief discussion of Topper's contention.
FACTS AND PROCEDURAL HISTORY
The prosecutor charged Topper with two counts of selling methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) The prosecutor also alleged that Topper suffered two prior narcotics convictions, served a prior prison term, and committed the present criminal offenses while on bail. (Health & Saf. Code, § 11370.2, subd. (a); Pen. Code, §§ 667.5, subd. (b), 12022.1, subd. (b).)
On April 13, 2007, Topper, represented by counsel, received advice of and waived his right to a preliminary examination and his constitutional rights regarding trial. He pled guilty to one count of selling methamphetamine and admitted suffering one prior narcotics conviction and serving a prior prison term. The trial court sentenced him to a two-year midterm of imprisonment for selling methamphetamine, and enhanced the sentence by three years for the prior narcotics conviction and one year for the prior prison term. The total sentence was six years. The trial court awarded Topper 522 days' presentence custody and conduct credits, and imposed restitution fines and various fees.
DISCUSSION
Recidivism statutes that increase the punishment for a later offense have long been held constitutional. "In the context of habitual criminal statutes, 'increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.'" (People v. Jackson (1985) 37 Cal.3d 826, 833, overruled on other grounds by People v. Guerrero (1988) 44 Cal.3d 343.) The increased punishment required by the prior narcotics conviction and the prior prison term enhancements "can be entirely avoided by remaining free of future felonious conduct." (People v. Cardenas (1987) 192 Cal.App.3d 51, 61.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J., Bruce A. Clark, Judge