P. v. Smith
Filed 2/28/07 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. SMITH, Defendant and Appellant. | D048859 (Super. Ct. No. SCD198823) |
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Robert A. Smith entered a negotiated guilty plea to possessing a controlled substance (Health & Saf. Code, 11350, subd. (a))[1]and admitted a prior no-probation drug conviction ( 11370, subd. (a)). The court sentenced him to the two-year middle term to be served concurrently with the sentence on two unrelated convictions, in superior court case No. SCD195612 and case No. SCD192500. Smith did not request a certificate of probable cause. (Cal. Rules of Court, rule 8.304, former rule 30(b).)
FACTS
On April 30, 2006, Smith possessed a usable amount of cocaine. Because Smith entered guilty pleas, he cannot challenge the facts underlying the convictions (Pen. Code, 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693), and the record contains no additional facts.
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 a clerical error was prejudicial. Smith's appellate counsel notes that the court imposed a prison term but in addition to reflecting the two-year prison term the minutes include a check in the box reflecting that probation was granted. The oral record of the sentencing hearing reflects that the court imposed a two-year prison term, not a grant of probation. Where there is a discrepancy between the minutes and the oral record, we rely on the oral record. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
We granted Smith permission to file a brief on his own behalf. He has responded. Smith contends that his conviction in this case, No. SCD198823, is the fruit of a poisoned tree: the conviction in case No. SCD195612 resulted from entrapment and the conviction in case No. SCD192500 was the product of an illegal search. He says he is unable to adequately prepare a brief in this case because he lacks the record in case No. SCD195612 and case No. SCD192500. He asks us to consolidate the three cases for appeal. In case No. SCD198823, Smith entered a guilty plea and has not obtained a certificate of probable cause. The only relevance of possible fruit of a poisoned tree in this case (based on a possible entrapment defense in case No. SCD195612 or a possible unlawful search defense in case No. SCD192500) is a claim that the guilty plea in this case is invalid. Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (Pen. Code, 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Because Smith entered a guilty plea in this case and has not obtained a certificate of probable cause, no purpose would be served by consolidating the appeal in case No. SCD198823 with the appeal from the judgments in case No. SCD195612 and case No. SCD192500.
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, and the issues raised by Smith, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Smith on this appeal.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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[1] All statutory references are to the Health and Safety Code unless otherwise specified.
