P. v. Bell

Filed 2/23/07 P. v. Bell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

TERRILL ANTHONY BELL,

Defendant and Appellant.

D048675

(Super. Ct. No. SCD186888)

APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel and David J. Danielsen, Judges. Affirmed.

After the court denied a motion for a mistrial, Terrill Anthony Bell entered negotiated guilty pleas to possession of a controlled substance for sale (Health & Saf. Code, 11351.5) and unlawful possession of body armor (Pen. Code, 12370, subd. (a)).^{^[1]} He admitted two prior strikes ( 667 subds. (b)-(i), 1170.12, 668) and serving a prior prison term ( 667.5 subd. (b), 668). He waived his right to a jury or court trial, the right to confront and cross-examine witnesses, the right to subpoena witnesses, the right to present evidence, and the right to testify or remain silent, as to any sentencing factors that may be used to increase his sentence to the upper term. (See Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (January 22. 2007) ___ U.S. ___, 2007 WL 135687.) The court struck one prior strike and the prior prison term enhancement and sentenced him to prison for 11 years and four months: double the five-year upper term for possessing a controlled substance for sale with a prior strike with a consecutive 16 months for unlawfully possessing body armor with a prior strike (double one-third the middle term). The court denied 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 November 10, 2004, a San Diego police officer attempted to stop a vehicle for a traffic violation. The driver jumped out of the car and ran. An officer found a bulletproof vest lying in the street with a jacket that matched the description of a jacket worn by the driver of the car who fled. The jacket contained Bell's driver's license, a small amount of marijuana and five rocks of cocaine base.

During direct examination of Officer Bressler, the officer testified that while trying to find the driver who fled, she found a batter's glove that matched one found in the vehicle Bell had been driving and a green handkerchief. The officer found the items apparently in the area through which Bell had run. During cross-examination of Officer Bressler in the jury's presence, defense counsel opened a bag containing the batter's glove and the green handkerchief that the officer found. Cocaine base that the People apparently did not know was in the bag fell out of the bag. Bell moved for a mistrial. The trial court denied a motion and Bell entered the guilty pleas.

Because Bell entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code, 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.

During the sentencing hearing, the court imposed the upper term because of Bell's criminal record, the amount of violence contained therein and because a prior strike had been stricken.

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 possible but not arguable issues: (1) whether Bell was denied effective assistance of trial counsel; (2) whether Bell was adequately advised of the consequence of his guilty pleas and admissions; (3) whether the trial court abused its discretion in denying Bell's motion for a mistrial and whether Bell can raise this issue on appeal; and (4) whether the trial court erred in admitting damaging and surprising evidence.

We granted Bell permission to file a brief on his own behalf. He has not responded. 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 Bell on this appeal.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

Publication Courtesy of California attorney referral.

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^{^[1]} All statutory references are to the Penal Code unless otherwise indicated.

Description	After the court denied a motion for a mistrial, Terrill Anthony Bell entered negotiated guilty pleas to possession of a controlled substance for sale (Health & Saf. Code, 11351.5) and unlawful possession of body armor (Pen. Code, 12370, subd. (a)).[1] He admitted two prior strikes ( 667 subds. (b)-(i), 1170.12, 668) and serving a prior prison term ( 667.5 subd. (b), 668). He waived his right to a jury or court trial, the right to confront and cross examine witnesses, the right to subpoena witnesses, the right to present evidence, and the right to testify or remain silent, as to any sentencing factors that may be used to increase his sentence to the upper term. (See Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (January 22. 2007) U.S., 2007 WL 135687.) The court struck one prior strike and the prior prison term enhancement and sentenced him to prison for 11 years and four months: double the five year upper term for possessing a controlled substance for sale with a prior strike with a consecutive 16 months for unlawfully possessing body armor with a prior strike (double one third the middle term). The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304.) Court granted Bell permission to file a brief on his own behalf. He has not responded. 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 Bell on this appeal. The judgment is affirmed.
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