P. v. Lucero

Filed 10/12/06 P. v. Lucero CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Stephen Gino Lucero, Jr., entered a negotiated plea of guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a))^[1] in exchange for the upper term of three years, suspended on the condition that he complete drug court. Defendant, at the time of his plea, was serving a term for violation of parole on another matter and was unable to start drug court until he was released. He agreed to plead to the possession offense and continue sentencing until a month or two before his scheduled release on the parole violation term. The prosecutor stated for the record that drug court was a “one-time deal,” and if defendant failed drug court he would serve three years in state prison for the possession offense. The prosecutor dismissed the remaining counts (being under the influence, a misdemeanor; driving under the influence, a misdemeanor; driving with a .08 percent blood alcohol content, a misdemeanor; driving without a license, a misdemeanor; and failure to provide evidence of financial responsibility, an infraction) for insufficient evidence. The prosecutor dismissed the allegations (strike prior, two prior prison terms) in light of defendant’s plea.

The court imposed a state prison sentence of the upper term of three years, then suspended execution and granted probation, ordering defendant to attend drug court.

Defendant was accepted into the substance abuse program. He violated probation by being terminated from New Directions on July 9, 2005, and making no attempt to contact drug court staff. The court imposed the previously suspended sentence of three years.

Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was denied.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, claiming ineffective assistance of counsel in that “[c]ounsel was unaware of law that made the inducement to plead guilty valueless” in that there was “‘no drug recognition expert exam,’” and “[c]ounsel failed to investigate the truth of a prior conviction” that was used to aggravate defendant’s sentence.

Defendant entered his plea in exchange for a stipulated upper term of three years, suspended on condition he complete drug court. Defendant is challenging the validity of his plea; his claims are barred by his failure to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 74-76 (Panizzon); People v. Turner (1985) 171 Cal.App.3d 116, 124-128 & fn. 8 (Turner).)

Defendant also claims he never agreed to registration as a narcotics offender pursuant to section 11590 and that he complained about the same at sentencing. If defendant’s claim is construed as challenging counsel’s or the court’s failure to advise of his duty to register as a narcotics offender, his claim challenges the validity of his plea and is barred by his failure to obtain a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at pp. 74-76; Turner, supra, 171 Cal.App.3d at pp. 127-128, fn. 8.) To the extent he claims the registration requirement violates the terms of the agreement, his claim is not supported by the record.

In sentencing defendant to state prison, the court ordered him to register as a narcotics offender pursuant to section 11590. The abstract of judgment reflects that narcotics offender registration is required. At the entry of plea hearing, there was no discussion concerning mandatory narcotics offender registration, and defendant stated there were no promises made other than those stated in court. Section 11590 mandates registration for certain controlled substance offenders, defendant being one since he violated section 11350. The trial court properly imposed mandatory narcotics offender registration.

Finally, defendant claims errors in the proceedings, noting that he had two motions to withdraw his plea and one hearing to substitute counsel. Defendant’s failure to obtain a certificate of probable cause bars review of these claims as well. (Turner, supra, 121 Cal.App.3d at pp. 127-128, fn. 8.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

HULL , J.

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^[1] All further statutory references are to the Health and Safety Code unless otherwise indicated.