Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FMB 700029. Rodney A. Cortez, Judge. Affirmed.
Laura L. Furness, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant was sentenced to state prison pursuant to a negotiated plea agreement providing for a stipulated low term of 32 months, concurrent with any other term. His appeal was from the sentence, but he also challenges the validity of his guilty plea in his supplemental brief.
BACKGROUND
On February 17, 2007, sheriff’s deputies attempted a traffic stop after defendant’s vehicle was observed to exceed the speed limit and run through a stop sign. Instead of stopping, defendant sped up and pulled away from the sheriff’s deputy, traveling through a residential area at speeds in excess of 65 miles per hour, running over stop signs in the process. He lost control of the vehicle which eventually came to a stop in Yucca Valley, where defendant exited the car and fled into the desert. He was eventually taken into custody.
Defendant was charged by way of complaint with evading a peace officer. (Veh. Code, § 2800.2, subd. (a).) It was further alleged that he had previously been convicted of a serious or violent felony within the meaning of the Strikes Law. (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subd. (a).) Prior to his preliminary hearing, defendant sought to have his appointed attorney relieved, and new counsel appointed (ref. People v. Marsden (1970) 2 Cal.3d 118), but this request was denied.
On April 20, 2007, defendant waived his right to a preliminary hearing (Pen. Code, § 859a), and entered into a negotiated plea bargain. Under the terms of the agreement, defendant agreed to plead guilty to the charge of evading the peace officer, and admit the strike allegation, in return for a mitigated sentence of 16 months, doubled pursuant to the Strikes Law, for at total commitment of 32 months, which would run concurrent with any other time the defendant might be obligated to serve. The parties agreed that a factual basis for the plea was contained in the police reports.
On July 12, 2007, defendant made another request to have his appointed attorney relieved and new counsel appointed. Following an in camera hearing, this request was denied. The next day, defendant was sentenced in accordance with the terms of the plea agreement to 32 months in state prison, concurrent with any other sentence. Defendant was awarded presentence credits against his term of 220 days. In addition, the court ordered defendant to pay a booking fee of $79.86, and a restitution fine in the amount of $400 pursuant to Penal Code section 1202.4; it suspended a parole revocation restitution fine the same amount pending successful completion of parole. That same day, defendant filed a notice of appeal following the guilty plea, based on the sentence or other matters occurring after the plea.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1386, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, and he has filed a brief challenging the constitutionality of his guilty plea. Specifically, he contends (1) that his prior conviction in Los Angeles County case No. MA026870 is invalid because he was not advised of his constitutional rights in that case before entering his plea in that case, and his attorney in the current case provided ineffective assistance of counsel by failing to challenge that prior conviction, (2) his strike prior was invalid because it had been stricken in previous criminal action, and (3) that he was entitled to 50 percent credits against his prison term.
Preliminarily, we find that none of the issues raised by defendant are properly before us because he did not request and obtain a certificate of probable cause. Under Penal Code section 1237.5 and California Rules of Court, rule 8.304(b)(3), the Court of Appeal generally may not proceed to the merits of the appeal following a guilty plea which challenges the validity of the plea unless the defendant has filed a statement of certificate grounds (that is, a request for certificate of probable cause), as an intended notice of appeal within 60 days after rendition of judgment, and has obtained a certificate of probable cause within 20 days after filing of the statement. (People v. Mendez (1999)19 Cal.4th 1084, 1096.) Nevertheless, pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and address the points raised by defendant pursuant to Anders v. California (1967) 386 U.S. 738, 744 [87 S.Ct. 1396, 18 L.Ed.2d 493].
Defendant’s challenge to the constitutional validity of the prior conviction is not properly challenged in this appeal. (People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1101.) The federal Constitution does not authorize a criminal defendant to move in the trial court to strike an alleged prior state felony conviction unless he or she was denied the right to counsel in the prior proceeding. (Custis v. United States (1994) 511 U.S. 485, 497 [114 S.Ct. 1732, 128 L.Ed.2d 517].) By accepting the plea bargain and admitting the prior conviction, defendant waived any legal challenges to its validity and the admission means there is no record of it for us to review. (People v. LaJocies (1981) 119 Cal.App.3d 947, 956-957.)
Defendant argues that he only waived his right to a jury “on the case” but not as to the strike allegation. This assertion is contradicted by the record, which shows his plea agreement specifically included a term requiring that he admit the strike, and he initialed the boxes indicating he waived all constitutional rights relating to a trial on the prior convictions as well as the current case. Further, the admission of the strike prior, and the doubling effect it would have on the stipulated sentence, were integral parts of the plea agreement. As such, a certificate of probable cause is required to make the appeal operable. (People v. Panizzon (1996) 13 Cal.4th 68, 79.)
Defendant argues that the dismissal of the strike in a previous criminal action precludes its use as a strike in the current case. This is incorrect. A decision to dismiss a strike allegation in one case does not prevent the government from charging the same prior conviction as a strike in a later prosecution. A motion to strike a prior conviction is not the equivalent of a determination that the defendant did not suffer the prior conviction. (People v. Sumstine (1984) 36 Cal.3d 909, 920-921.) It does not wipe out the prior conviction or prevent it from being considered in connection with later convictions. (See In re Varnell (2003) 30 Cal.4th 1132, 1138.)
Defendant claims his right to effective assistance of counsel was violated by trial counsel’s failure to challenge his prior strike. There is nothing in the record to support this claim. Defendant accepted a plea bargain prior to any preliminary hearing, where the admission of the strike was part of the negotiated plea bargain. We presume, therefore, there was a tactical purpose underlying counsel’s acts. (See People v. Anzalone (2006) 141 Cal.App.4th 380, 394.)
Finally, defendant contends that he should have been eligible for 50 percent conduct credits. He is in error because the prior conviction he admitted was a strike allegation. A defendant is required to serve 80 percent of any sentence imposed under the strike law. (Pen. Code, § 667, subd. (c)(5).)
The record shows appellant was advised of the rights being waived and the consequences of pleading guilty and admitting the prior conviction. There is substantial evidence to support the trial court’s finding that the plea was knowing, intelligent, and voluntary. Further, the fact the parties stipulated that the police reports established a factual basis for the plea satisfies the legal requirements. (See People v. Holmes (2004) 32 Cal.4th 432, 443-444.) We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur Ramirez, P.J., Hollenhorst, J.