Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF4946, Gregg L. Prickett, Judge.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Donald Mitchell Wesp was charged with three counts of violating Penal Code section 290, failure to register for three years. (All statutory references are to the Penal Code.) The pleading alleged he suffered three prior serious and violent felony convictions. He pleaded not guilty to all counts.
Many months after his plea, defendant moved to withdraw his plea of not guilty and to enter a plea of guilty to count one. As a factual basis for his guilty plea, defendant offered the following: “On or about 11/1/05, I willfully and unlawfully failed to register pursuant to PC 290(g)(2), having been required to register pursuant to that code section after having been convicted under case #C68549.”
The court exercised its discretion under section 1385 and struck two of the three prior crimes alleged in the felony complaint. Defendant was sentenced to state prison for a term of four years which was double the middle term for count one.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Counsel advised this court of two possible issues to assist this court in its review of the record: “I. Is appellant’s guilty plea constitutionally valid and can any issues related to the plea’s validity be raised on direct appeal? [¶] . . . [¶] II. Did the trial court abuse its sentencing discretion in imposing a four-year prison sentence?” In a separate document, counsel requested that certain confidential documents be transmitted to this court.
Defendant was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received no communication from defendant.
The plea
“Under long and well-established principles, a trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea. [Citations.]” (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.) A plea in a felony case cannot be accepted without an affirmative showing that it was intelligent and voluntary. (Boykin v. Alabama (1969) 395 U.S. 238, 242.) Before Boykin, “it was well established that a valid guilty plea presupposed a voluntary and intelligent waiver of the defendant’s constitutional trial rights, which include the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. [Citations.] The new question that the high court addressed in Boykin was whether it was permissible to infer such a waiver from a silent record.” (People v. Howard (1992) 1 Cal.4th 1132, 1175-1176.)
The defendant in In re Tahl (1969) 1 Cal.3d 122, 124 contended the trial court failed to inform him of the nature and consequences of his guilty plea, and that he at no time expressly waived his right to a jury trial or any other constitutional right. The California Supreme Court rejected his argument and explained: “[R]ather than simply presuming from the presence of counsel that petitioner had been informed of his rights, the court specifically ascertained from petitioner that he had in fact conferred with counsel as to his rights and the nature of his plea to the charge.” (Id. at p. 129, fn. omitted.) “[E]ach of the three rights mentioned—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.” (Id. at p. 132.)
“[W]e emphasize that explicit admonitions and waivers are still required in this state. We also reaffirm our caveat in Tahl that trial courts ‘would be well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waivers of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record.’ [Citation.]” (People v. Howard, supra, 1 Cal.4th at p. 1179.)
In this case, the trial court thoroughly inquired of defendant before making the finding defendant knowingly and voluntarily waived his constitutional rights. The court’s inquiry did not begin until after defendant read and signed the guilty plea form after his initials were placed next to each of his rights. The court asked defendant if he went over the contents of the form with his lawyer. After defendant said no one had promised him anything other than his maximum sentence would be four years in prison, the court went over each of defendant’s constitutional rights and asked whether or not defendant understood them. Defendant said he did. The court asked defendant if he waived his rights, and defendant said he did. At that point, the court made its finding defendant intelligently and voluntarily waived his constitutional rights, and found there was a factual basis for the plea. We find the record reflects defendant knowingly and voluntarily waived his constitutional rights when he pleaded guilty.
The sentence
Defendant pleaded guilty to count one which charged that a violation of section 290, subdivision (g)(2) occurred in 2004. In 2004, that subdivision read that a defendant who violated it “shall be punished by imprisonment in the state prison for 16 months, or two or three years.” The court doubled the sentence pursuant to section 667, subdivision (e).
When the court sentenced defendant, the judge stated: “The court will sentence the defendant on count 1 to the midterm of two years. [¶] The court will, pursuant to People v. Benson, at 18 Cal.4th, the court believes that it is, I think it’s footnote 8 that speaks to prior convictions that flow out of the same set of operative facts, the same transaction, that there is not a causal break in the acts. [¶] That although Penal Code section 654 does not prevent them from being strikes, that it would, it is appropriate for the court to exercise its discretion and to strike those. [¶] So as listed, the court is striking strikes 2 and 3 at this time. [¶] The court then, under 667(d) and (e)(2) and 1170.12(b) and (c)(2), is doubling that two-year sentence to four years.”
Here, the record is clear both defendant and the court mutually understood defendant’s sentence would be four years. The guilty plea form states: “I understand the court will (Circle and initial all that apply) [¶] (a) Sentence me to state prison for a period of 4 years . . . .” Defendant’s initials are next to the indicated sentence of four years. As noted above, the court verified the sentence by orally inquiring of defendant.
“[W]e conclude that inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 763.)
There is no certificate of probable cause in the record before us. Under this set of facts, we must conclude there was no sentencing error.
We have examined the record, including the sealed confidential documents and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR BEDSWORTH, ACTING P. J., IKOLA, J.