P. v.Wainwright
Filed 2/16/07 P. v. Wainwright CA4/2
NOT TO BEPUBLISHED IN OFFICIAL REPORTS
CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b). This opinion has not been certified forpublication or ordered published for purposes of rule 977.
IN THE COURT OFAPPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATEDISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH WAINWRIGHT,
Defendant and Appellant.
|
E040650
(Super.Ct.No. FWV037528)
OPINION
|
APPEAL from the Superior Court of San BernardinoCounty. Raymond C. Youngquist, Judge. Affirmed with directions.
Neil Auwarter, underappointment by the Court of Appeal, for Defendant and Appellant.
No appearance forPlaintiff and Respondent.
Defendant pled nolocontendere to selling/transporting cocainebase. (Health & Saf. Code, § 11352(a).) As part of his plea bargain, he waived hisright to appeal. He was sentenced to the agreed-to term of four years inprison. His request for a certificate of probable cause was denied by the trialcourt.
Facts
Defendant entered hisplea before a preliminary hearing wasconducted. There are no police reports in the record before this court anddefendant waived preparation of a probation report. Therefore, we have nofactual statement in the record before us other than defendant's statement atthe taking of the plea that he was pleading no contest to transporting orselling cocaine base on or about June 16, 2005.
Defendant's Appeal
Defendantappealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979)25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary ofthe facts and potential arguable issues,and requesting this court to undertake a review of the entire record. Afterdefendant's brief was filed the California Supreme Courtdecided People v. Kelly (Nov. 27, 2006, S133114) __Cal.4th__ [2006D.A.R. 15444].
We invited defendant tosubmit a personal supplementalletter brief, which he has done. In his four page brief, defendantcontends first that he was not present at the sentencing hearing. The recordstates otherwise. In fact, the transcript contains a discussion betweendefendant and the trial court concerning the former's medical status. While itis true that defendant was not present at the calculation of his presentencecredits, he waived his appearance. If, as defendant appears to insist, he wasnot actually
present atthe taking of his plea and sentencing (which occurred seriatim on the same day)and the record before us falsely states that he was, this appeal is not theproper vehicle for him to make this assertion.
Defendant points outthat he wrote to the trial court, asking to withdraw his plea. However, thetrial court received this request three days after defendant had been sentencedand it took no action on it. Therefore, there is nothing for us to review. Tothe extent defendant is claiming we should vacate his plea and sentence becausehe did not understand what was occurring in connection with his plea and he wasincompetently represented, as before, a petition for writ of habeas corpus is the correctvehicle, not this appeal.
We are unable to readand/or understand the rest of defendant's brief.
Our independentevaluation of the record discloses no other basis for reversal.
Disposition
Ifit has not already done so, the trial court is directed to award defendant for12 days of presentence custody, for a total credit of 16 days, rather than the13 that is currently stated in the Credit for Time Served Memorandum from theProbation
Department. In all other respects, the judgment is affirmed.
NOTTO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
RICHLI
J.
KING
J.
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