P. v. Eck

Filed 5/7/08 P. v. Eck CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael M. Dest, Judge. Affirmed.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant and appellant Robert Brian Eck pled guilty to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1), count 1)^[1]and one count of possession of ammunition ( 12316, subd. (b)(1), count 2). Defendant admitted that he had suffered a prior strike conviction. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In exchange, the trial court sentenced defendant to state prison for the upper term of three years on count 1,^[2]doubled because of the strike conviction to six years, plus a consecutive term of 16 months on count 2. However, the court gave defendant a stay of execution that was to expire on March 1, 2007. Defendant was released on a Vargas^[3]waiver. Under the Vargas waiver, if defendant violated no laws, and returned to court on March 1, 2007, the court would reduce the seven-year four-month sentence to three years on count 2, dismiss the other count, and strike the prior strike allegation. On the other hand, if he violated the law or failed to appear for the sentencing hearing, the seven-year four-month sentence would remain.

Defendant failed to appear on March 1, 2007. Following a Vargas waiver hearing, the court found defendant violated the terms of his Vargas waiver, lifted the stay on defendants seven-year four-month sentence, and imposed the sentence, with credit for time served.

Defendant filed a notice of appeal two months after the sentencing hearing. His request for a certificate of probable cause was denied. We affirm.

DISCUSSION

Defendant appealed, 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 setting forth a statement of the case and a few potential arguable issues, and requesting this court to undertake a review of the entire record.

The potential arguable issues identified by counsel include: 1) whether any issue is appealable without a certificate of probable cause and in the presence of a waiver of the right to appeal; 2) the validity of the Vargas agreement; 3) the sufficiency of the evidence of a Vargas violation; 4) whether the imposition of the upper term, based on a Vargas violation, in the absence of a jury trial on the question of whether there was a Vargas violation, violated defendants constitutional right to a jury trial; 5) whether any waiver of appeal encompassed the question of a Vargas violation, as well as any justification for the imposition of the upper term; and 6) whether any issue was forfeited for lack of an objection.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

We have now concluded our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P. J.

KING

J.

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

^[2] Defendant executed a waiver pursuant to Cunningham v. California (2007) 549 U.S. 270.

^[3]People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).