Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD203316, William H. Kennedy, Judge.
McCONNELL, P. J.
Francisco Varela pleaded guilty under a plea agreement to one count of possession of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and one count of resisting an executive officer (Pen. Code, § 69). Varela admitted two prior prison terms (Pen. Code, §§ 667.5, subd. (b), 668) and one strike prior (Pen. Code, §§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced Varela to prison for 32 months: the low term of 16 months on the possession count, doubled, and a concurrent 16-month term, doubled, on the resisting an executive officer count. The court struck the two one-year prison priors. Varela appeals. We affirm.
BACKGROUND
Varela, and an undercover officer working on a "buy-bust" sting operation, bought rock cocaine from another individual. While being taken into custody, Varela punched an officer, ran and was apprehended by officers after a foot chase.
At Varela's change of plea hearing, the court stated "[t]his . . . tells me that you have not been induced to enter this plea by any promise or representation of any kind, except the district attorney will accept the plea to Counts 4 and 5 and dismiss the balance, leave the sentence to the Court." The court also stated, "at this time the Court is considering striking the strike, depending on verification of what I understand took place on that occasion" and indicated, "the sentence will be from 32 to 36 months, with or without the strike." Varela indicated he understood. The court read Varela his constitutional rights and Varela waived those rights. Varela also indicated he understood "that strike is still out there, it could result in reduced conduct credits, either no credit or a maximum credit of 20 percent." Varela then pleaded guilty to the charges.
Regarding the prison priors and strike prior, counsel stated, "it's my understanding the People were requesting Counts 4 and 5 with the strike prior. I think they were going to strike the prison priors, if I'm correct." The district attorney indicated that was not correct, and, after counsel conferred with the district attorney, counsel stated they were ready to proceed. Varela then admitted the two prior prison terms and his strike prior from Arizona for second degree murder.
At sentencing, counsel moved to strike Varela's strike prior contending the court previously indicated it would "strongly consider striking the strike." The court denied the motion and sentenced Varela to the low end of the plea agreement of 32 months in prison.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, he lists, as possible but not arguable issues, whether: (1) Varela's negotiated plea in exchange for an indicated sentence of between 32 and 36 months, depending on whether the court chose to strike his strike prior, is constitutionally valid; (2) the court abused its discretion in not striking Varela's strike prior; and (3) trial counsel misled Varela to enter into the plea agreement by falsely promising him the plea included the striking of his strike prior.
We granted Varela permission to file a brief on his own behalf. He has responded. Varela repeats the third issue raised by appellate counsel: trial counsel encouraged him to sign the plea agreement and promised his strike prior would be stricken.
Varela may not challenge his plea directly in this appeal without obtaining a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 4.412, 8.304(b).) The record indicates Varela only appealed the sentence or other matters occurring after the plea and did not obtain a certificate of probable cause.
To the extent Varela contends trial counsel was ineffective in his advisement in taking the plea, Varela must show (1) his attorney's performance was deficient, and (2) the deficiencies prejudiced the result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Nothing in the record supports the factual basis for Varela's contention. At the change of plea hearing and on the plea form, Varela indicated his plea was not induced by any promises and the court would only "consider" striking the strike prior. Right before pleading guilty, Varela indicated he understood the "strike is still out there." Because there is no evidence counsel misled Varela or made any promises regarding the court striking the strike prior, counsel's performance cannot be considered deficient on this record. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Lucas (1995) 12 Cal.4th 415, 437 [defendant carries a heavy burden when a claim of ineffective assistance of counsel is made on direct appeal]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [if record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected].)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the remaining possible issues listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Varela has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., McDONALD, J.