P. v. Jordan

Filed 6/20/06 P. v. Jordan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, David J. Danielsen, Judge. Affirmed.

Calvin D. Jordan entered negotiated guilty pleas to selling a controlled substance and possessing a controlled substance for sale. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5.) He admitted two prior strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668) and other prior convictions that made him ineligible for probation (Pen. Code, § 1203.073, subd. (b)(7); Health & Saf. Code, § 11370, subd. (a)). The court struck one prior strike and sentenced him to prison for six years: double the three-year lower term for selling a controlled substance with a prior strike conviction. It stayed sentence for possessing a controlled substance for sale (Pen. Code, § 654). 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 a possible but not arguable issue whether the trial court abused its discretion in failing to strike both prior strikes.^[1]

We granted Jordan permission to file a brief on his own behalf. He has responded.

He contends his sentence is too severe for an addict merely facilitating sale of cocaine base, that he was tricked into signing the plea bargain form indicating the sentence could be from zero to six years, and his counsel told him that the court said it would not impose a six-year sentence.^[2]

Health and Safety Code section 11352, subdivision (a) provides for a sentence of three, four, or five years for violation of that section. Penal Code section 667, subdivision (e)(1) provides that the sentence shall be doubled if a defendant has one prior strike conviction. Determination as to the appropriate term is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) Here, the six-year sentence was the minimum the court could have imposed under the circumstances. It was not arbitrary or capricious.

Regarding Jordan's claims that he was tricked into signing the plea bargain and his counsel told him the court said it would not impose the six-year term, nothing in the record supports these claims. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Jordan wishes to raise these issues he must do so by a habeas corpus petition filed in the trial court.

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 Jordan on this appeal.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] Because Jordan entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.

^[2] Jordan filed a second supplemental brief noting that his appellate counsel had mistakenly stated the terms of the sentence. We note that in her opening brief Jordan's counsel did mistakenly state that Jordan was sentenced to double the two-year lower term for violating Health and Safety Code section 11352, subdivision (a). The record contains the accurate information. Counsel's mistake has no effect on the appeal. In a third supplemental brief, Jordan claims the abstract of judgment is improper because it contains no fingerprint and no signatures. The abstract of judgment here is contained in a Judicial Council form as directed by Penal Code sections 1213 and 1213.5. Nothing in the code sections or Judicial Council form requires a fingerprint or a signature other than the signature of the deputy clerk certifying the abstract. The abstract of judgment here has the deputy clerk's signature.