P. v. Montes

Filed 5/11/06 P. v. Montes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Temporary Judge (pursuant to Cal. Const., art. VI, § 21) and Lynn C. Atkinson, Judge.^†

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

On August 1, 2005, appellant, Raul Castro Montes, pled guilty to second degree burglary (Pen. Code, § 459, subd. (a), count one) and to one count of resisting a peace officer (Pen Code, § 148, subd. (a)(1), count three).^[1] Montes admitted a prior serious felony conviction within the meaning of the three strikes law. Two other misdemeanor counts and prior prison term enhancements were dismissed.

On August 29, 2005, the trial court sentenced appellant to state prison for the upper term of three years doubled to six years pursuant to the three strikes law. The court imposed a restitution fine and granted applicable custody credits.

Montes's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Montes was advised he could file his own brief with this court. By letter on December 16, 2005, we invited Montes to submit additional briefing

Montes belatedly replied with a short letter on April 11, 2006, asserting that he was told by defense counsel that he would receive a sentence of no more than four years.^[2] We note that Montes has failed to obtain a certificate of probable cause. Thus, any review of the proceedings below must be limited on appeal to suppression and sentencing issues. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

We have carefully reviewed the record of the plea proceedings. Even if this issue could be reviewed on appeal, we find it to be without merit. Montes was never told by the court that there would be a lid on his prison term as a condition of his plea. Montes was expressly told that if he admitted he had a prior serious felony, he faced a prison term of 32 months, 4 years, or 6 years. The trial court's admonishments constitute the only record before us. There is no record of what trial counsel told Montes. Based on the record, Montes received an accurate admonition concerning the maximum prison term he faced.

Montes argues that he would like to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to have the prior serious felony conviction stricken. Consideration of a lower term or a Romero proceeding were not conditions of Montes's plea agreement.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Apartment Manager Lawyers.

^* Before Harris, Acting P.J., Cornell, J., and Gomes, J.

^† Judge LaPorte presided over appellant's change of plea. Judge Atkinson sentenced appellant.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] Montes states in his letter brief that he was transported from Wasco prison to Fresno County on an immigration hold and did not have access to his property or papers. We have, therefore, filed his letter brief and consider the points he has made therein.