P. v. Wright

Filed 2/8/07  P. v. Wright 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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, K. Michael Kirkman, Judge.  Affirmed.

            After the trial court denied a motion to suppress evidence (Pen. Code, §  1538.5) and dismiss the information (Pen. Code, §  995), Gene Wright entered a negotiated guilty plea to possessing methamphetamine for sale (Health & Saf. Code, §  11378) and admitted two prior drug convictions within Health & Safety Code, section  11370.2, subdivision (c) and a prior strike (Pen. Code, §§  667 subds. (b)-(i), 1170.12, 668). The court denied a motion to strike the prior strike and sentenced Wright to a prison for five years eight months: double the 16-month lower term for possessing methamphetamine for sale with a prior strike enhanced three years for a prior drug conviction.  It struck the second prior drug conviction finding.  The record does not include a certificate of probable cause.  (Cal. Rules of Court, rule 8.304.)

FACTS

            Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred.  On July 15, 2004, a detective and agents searched Wright's home.  They found in a lock box in the house that contained 104.30 grams of methamphetamine.  Also in the lock box was other property identified as belonging to Wright.  Because Wright entered a guilty plea, he cannot challenge the facts underlying the conviction.  (Pen. Code, §  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.)  We need not recite the facts in greater detail.  Because Wright waived as part of the plea bargain his right to appeal denial of his section 1538.5 motion, we need not discuss the facts surrounding the search.

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 Wright was properly advised of his rights and the consequences of the guilty plea and whether he voluntarily waived his rights.

            We granted Wright permission to file a brief on his own behalf.  He has responded.  Wright contends he was denied effective assistance of trial counsel and that his guilty plea was uninformed and coerced.  In support of Wright's contention that he was denied effective assistance of counsel, he claims: his trial attorney replaced the plea agreement he initially signed and initialed that did not waive his right to appeal denial of the section 1538.5 motion with one waiving his right to appeal denial of the motion to suppress evidence; his counsel failed to preserve his first plea agreement; his counsel failed to move to strike the prior strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497); his counsel inadequately investigated and inadequately prepared for trial and sentencing; his counsel failed to preserve a record of an affidavit signed by a codefendant in which she took full responsibility for possessing the methamphetamine found in the lock box; and Wright and his counsel became embroiled in a conflict leading to counsel's replacement.  These claims are not supported by the record before this court.  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 Wright wishes to show he was denied effective assistance of counsel, he must do so by a habeas corpus petition filed in the trial court.

            In support of Wright's contention that his guilty plea was not free and informed, he claims his counsel pressured him into entering the agreement and failed to provide him with all relevant information to enable him to make an informed decision whether he should enter the guilty plea.  However, 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.)  As indicated above, the record here does not include a certificate of probable cause.

            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 Wright on this appeal.

DISPOSITION

            The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

                                McDONALD, J.

                                   McINTYRE, J.

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