Filed 7/25/17 P. v. Gallegos CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND GALLEGOS,

Defendant and Appellant.
H044478
(Santa Clara County
Super. Ct. No. B1686979)
Defendant Raymond Gallegos pleaded no contest to charges of driving under the influence of alcohol and causing injury, driving on a suspended license, and hit and run driving causing property damage, and admitted one prior strike offense from a 1997 robbery conviction. The trial court sentenced Gallegos to 32 months in prison in accordance with the plea agreement and awarded credit for time served.
Gallegos appeals only from the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).) We appointed counsel to represent Gallegos in this court. His counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). We advised Gallegos of his right to submit written argument on his own behalf within 30 days. Gallegos has submitted a letter brief essentially challenging the prior strike conviction, which he contends was “secretly” imposed, and arguing that despite his counsel’s assurance that his plea to the charges in this case would not constitute another strike, a document from the Department of Corrections categorizes him as a “2nd striker.”
Pursuant to Wende, we have reviewed the record and conclude that there are no arguable issues. We will provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110 (Kelly).) Pursuant to Kelly, we will explain why we reject the contentions in Gallegos’s letter brief. (Id. at p. 113.)
I. FACTUAL AND PROCEDURAL BACKGROUND
A. THE CHARGED INCIDENT
Gallegos was arrested in Los Altos on July 5, 2016, following a hit-and-run collision in which his truck struck from behind a vehicle that was stopped at a red light. Both drivers were uninjured, but a passenger in the victim’s vehicle suffered an injury to her lip, and the victim’s vehicle was towed from the scene. Gallegos drove away after the accident, though a witness recorded his license plate and took photographs. Police officers investigating the incident determined from the license plate that Gallegos had been arrested the day before for driving under the influence and had his vehicle released to him earlier on the day of the hit-and-run collision. Officers canvassed the area, found Gallegos’s vehicle in a parking lot, and contacted Gallegos, who spontaneously told officers “ ‘they wrecked into me.’ ” Gallegos failed the field sobriety exercises and submitted to a preliminary alcohol screening test. The test yielded results of 0.240 percent, 0.247 percent, and 0.246 percent. Gallegos later told officers that he had consumed two beers the previous day and “as alcohol stayed in the system for at least 72 hours,” the blood chemical test would be positive. He also admitted to taking approximately 15 pills that day, including Percocet and Oxycodone. He denied committing the crimes for which he was accused.
B. THE PRIOR CONVICTION
Gallegos’s prior conviction for robbery arose out of a shoplifting incident in October 1997. According to the probation report, Gallegos took a bottle of whiskey from a grocery store and tried to leave without paying, then assaulted security personnel and tried to flee when they confronted him over the stolen property. Gallegos contests these facts in his letter brief. He maintains that he tried to give the store clerk payment of $100 for the liquor, because he could not wait in line to check out, and upon exiting the store while openly carrying the liquor was attacked by an officer with pepper spray and severely beaten. He claims the store clerk lied at the court hearing about being assaulted, and that when he took the plea deal under pressure by the public defender, no one told him that a strike was “secretly imposed” with the sentence.
Gallegos was convicted on December 15, 1997, of robbery in violation of Penal Code sections 211 and 212.5, subdivision (c) and sentenced to the lower term of two years in prison.
C. CHARGES, PLEA AGREEMENT, AND SENTENCING
The Santa Clara County District Attorney charged Gallegos in the present matter in an amended complaint filed on August 9, 2016, with felony driving under the influence of alcohol, causing injury to another (Veh. Code, § 23153, subd. (a); count 1), felony driving under the influence of alcohol with a blood alcohol level of 0.08 percent and causing injury (id., subd. (b); count 2), misdemeanor driving with a suspended or revoked license for prior DUI conviction (id., § 14601.2, subd. (a); count 3), and misdemeanor hit and run driving causing property damage (id., § 20002, subd. (a); count 4). The complaint alleged a blood alcohol level of 0.15 percent or more by weight, within the meaning of Vehicle Code section 23578, when Gallegos committed the offenses charged in counts 1 and 2, and alleged one prior strike offense for robbery (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 (the Three Strikes law)).
Gallegos pleaded no contest to counts 2, 3, and 4 of the amended complaint and admitted the prior robbery conviction in exchange for dismissal of count 1 and a state prison sentence of 32 months. The trial court confirmed that Gallegos understood the plea form and waiver of rights and reviewed the plea terms, noting the maximum sentence could be six years.
On February 16, 2017, the trial court sentenced Gallegos in accordance with the plea agreement. The court struck count 1, denied probation and imposed the low term of 32 months in state prison on count 2, to be followed by a three-year period of parole supervision, and awarded 453 days of custody credits for time served under Penal Code section 4019. The court ordered restitution and imposed the following fines and fees in connection with count 2: (1) a restitution fine of $300, plus an additional, suspended parole revocation fine of $300; (2) a $400 general fund fine, plus penalty assessments of $1,240; (3) a $4 emergency medical air transportation fine; (4) a $20 lab fee; (5) a $40 court security fee; (6) a $30 criminal conviction assessment fee; and (7) a $129.75 criminal justice administration fee to the City of Los Altos. The court imposed a term of 60 days in county jail for counts 3 and 4, applied custody credits for time served, ordered general restitution, and waived other fees associated with those counts due to excess custody credits.
On March 6, 2017, Gallegos filed a timely notice of appeal but did not file for a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).)
II. DISCUSSION
Gallegos’s letter brief presents his version of the events leading to the robbery conviction in 1997, recounted above, as well as mistreatment by police and pressure from his public defender, who he maintains persuaded him to accept a plea offer or face a grand jury and between four and 10 years of prison. Gallegos maintains that no one told him that “a ‘strike’ was secretly imposed with that sentence.” Gallegos explains that due to the “secretly imposed” strike in the past, he immediately asked his counsel in the present matter whether the driving-under-the-influence and hit and run charges would constitute a strike. His counsel responded “ ‘No.’ ” When he later was assigned to a different attorney with the public defender’s office, he again inquired about a strike in relation to the charges in this case and was informed there would be no strike. However, Gallegos points out that according to a “Legal Status Summary” from the Department of Corrections—a copy of which he has enclosed with his letter brief—he is a “2nd striker.” Gallegos argues that the Three Strikes law as he understands it was not intended to apply to a conviction for nonviolent offenses.
We deduce two contentions from Gallegos’s letter brief and briefly explain why each contention fails. (Kelly, supra, 40 Cal.4th at pp. 120-121.) First, Gallegos appears to challenge the factual basis for his plea to the 1997 robbery charge, which he claims resulted from false testimony. He also contends that the strike was “secretly imposed” without his knowledge. Second, Gallegos implies that as a result of his plea and conviction in the present matter, he again has been subjected to a “secretly imposed” second strike, as shown by his “2nd Striker” rating in the document from the Department of Corrections.
As to the first contention, we are unable to review the merits of Gallegos’s claim regarding his plea in 1997 and robbery conviction or “secretly imposed” strike. On the record in this case, Gallegos admitted that prior conviction. He initialed the paragraph on the advisement of rights, waiver, and plea form, which states, “I AM ADMITTING THAT I ALREADY HAVE ONE ‘STRIKE’ PRIOR” and explains that Gallegos will not be eligible for probation, is subject to a mandatory state prison sentence of twice the term otherwise provided, and sets forth the minimum sentence of 32 months and maximum of six years. Gallegos also initialed the next paragraph advising that because of the prior strike conviction, his prison work-time credit will not exceed 20 percent of the total term of imprisonment. Gallegos signed the plea form and, when asked by the trial court, verbally acknowledged on the record his understanding of the plea and waiver of rights. Furthermore, because Gallegos did not file a statement for issuance of a certificate of probable cause (Pen. Code, § 1237.5) in connection with the filing of this appeal, his appeal is limited to the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)
As to the second contention, the reference to Gallegos as a “2nd Striker” in the Department of Corrections document that Gallegos encloses with his letter brief is accurate as a matter of semantics. The Three Strikes law, as relevant here, provides that for a defendant who has “one prior serious and/or violent felony conviction . . . that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (Pen. Code, § 667, subd. (e)(1); see also id., § 1170.12, subd. (c)(1).) A defendant sentenced under this sentencing scheme, due to a prior strike conviction, is commonly referred to as a “second striker.” This may be understood by the following explanation in People v. Johnson (2015) 61 Cal.4th 674, 680-681: “Prior to its amendment by the [Three Strikes Reform] Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. (Former [Pen. Code,] §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)” Thus, a defendant with two or more qualifying prior convictions would have received a “third strike sentence” for his or her current felony conviction. (Id. at p. 680.) Similarly, a defendant “whose current conviction is for a felony that is neither serious nor violent . . . receive[s] a second-strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony.” (Id. at p. 681, italics added; see also Pen. Code, § 1170.126, subd. (c) [referring to a person “presently serving a term of imprisonment for a ‘second strike’ conviction imposed pursuant to” the provisions of the Three Strikes law that apply to a defendant with one prior strike conviction].)
Accordingly, we find no support for Gallegos’s second contention about a “secretly imposed” strike. We further conclude, upon our independent review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Kelly, supra, 40 Cal.4th 106, that there are no arguable issues on appeal.
III. DISPOSITION
The judgment is affirmed.






Premo, Acting P.J.





WE CONCUR:






Elia, J.








Grover, J.