P. v. Cervantes

Filed 8/14/06 P. v. Cervantes CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly and K. Michael Kirkman, Judges. Affirmed.

After the trial court denied a motion to suppress evidence (Pen. Code, § 1538.5), Albertano Cervantes entered a negotiated guilty plea to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He waived Proposition 36 probation and his right to appeal the denial of his motion to suppress evidence and any stipulated sentence. The court denied a motion to reduce the conviction to a misdemeanor and placed him on probation for three years, including a condition he serve 165 days in custody with credit for 165 days served. Because Cervantes entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel 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, counsel refers to as possible but not arguable issues whether: (1) Cervantes's waiver of his right to appeal a stipulated sentence is valid; (2) waiver of right to appeal the denial of his motion to suppress is valid; (3) the trial court erred in denying the motion to suppress evidence; (4) Cervantes's guilty plea was constitutionally valid; (5) Cervantes was entitled to Proposition 36 treatment; (6) the trial court erred in refusing to reduce the conviction to a misdemeanor; and (7) the probation conditions were improper.

We granted Cervantes permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Cervantes on this appeal.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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