Filed 5/26/17 P. v. Stokes CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY KYLE STOKES,
Defendant and Appellant.

A149466

(Solano County
Super. Ct. No. FCR314033)


Anthony Kyle Stokes appeals following his no contest plea to transportation of a controlled substance and possession of a controlled substance for sale with enhancements due to his prior crimes. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal. Stokes has also filed a brief asserting two bases of possible error. We conclude there are no issues requiring further review and affirm.
BACKGROUND
On January 30, 2013, Stokes pled no contest to transportation of a controlled substance in violation of Welfare and Institutions Code section 11379, subdivision (a) and possession of a controlled substance for sale in violation of Welfare and Institutions Code section 11378. His plea also included three misdemeanors, six specific enhancements, and an agreed commitment to county jail to serve a state prison sentence of 11 years and 8 months. Pursuant to his plea agreement, execution of sentence was suspended, and Stokes was placed on formal probation.
His probation was revoked in April 2013. On July 8, Stokes admitted the violations. The court terminated his probation and imposed the 11-year, 8-month sentence. Stokes was ordered to serve a period of mandatory supervision with 2,127 days of his time in custody suspended and 2,128 days imposed with an allowance of 389 days of pre-sentence credits.
In September 2014, mandatory supervision was revoked after Stokes was arrested for transportation of methamphetamine and unlawfully taking a motor vehicle. Stokes was given 180 days in jail and reinstated to mandatory supervision with credit for time served. His case was transferred from Yolo County to the Solano County Superior Court in March 2015.
In May 2015, Stokes’s mandatory supervision was again revoked due to his arrest in Solano County. After a short period in county jail, Stokes was released in June 2015 on his own recognizance provided he remain in residential drug treatment. His violation of mandatory supervision was to be heard in conjunction with the trial of his new charges. Stokes admitted the violation of mandatory supervision in February 2016, and a hearing on the possible sanction was set for March 17, 2016.
Stokes failed to appear at the March 17 hearing, apparently because he was arrested by the Suisun Police Department the previous day. After he was returned to bail following the March arrest, Stokes was arrested one more time in June 2016 before the court considered the sanction for his violation of mandatory supervision. On August 29, 2016, the superior court terminated mandatory supervision and ordered Stokes to 2,127 days of county prison with credit for 544 days. He timely appealed.
DISCUSSION
The brief filed by Stokes on his own behalf appears to raise two arguments. He claims his counsel was ineffective for failing to advise him of the import and consequence a prior conviction would have upon his plea and for failing to object that the 11-year, 8-month sentence on the plea violated Penal Code section 654. Both contentions are without merit.
The complaint in this case charged Stokes with two felonies. A three-year enhancement was alleged for each of them under section 11370.2 for a May 2009 prior conviction under section 11352. Stokes now says he would never have entered his no-contest plea had he known he would receive a three-year enhancement due to his prior crime.
He also claims that his four-year sentence for transporting a controlled substance for sale with a consecutive eight-month sentence for possession of a controlled substance violates Penal Code section 654 because the acts of possessing a controlled substance and transporting it are indivisible. Thus, he should not have been punished twice for the same act, and the eight-month consecutive sentence for possession was illegally imposed because it should have been stayed under Penal Code section 654. (See People v. Tinker (2013) 212 Cal.App.4th 1502, 1506.)
He adds he would have been eligible for drug court if he had gone to trial and been convicted. Since Stokes premises both of his arguments on a claim that his counsel was ineffective, we will address them on the merits in the absence of a certificate of probable cause, and even though the time for direct appeal has long expired. (Cal. Rule of Court, rule 8.308 (a).)
In order to prevail, it is incumbent upon Stokes to demonstrate that his counsel’s performance was below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1418.) Here, even if we accept for the sake of argument Stokes’s unsupported claims that counsel did not fully advise him at the time of his plea of the consequences of his prior offense and Penal Code section 654’s prohibition against dual punishment, he cannot show he was prejudiced by such omissions.
To show prejudice, a defendant who has entered a no-contest or guilty plea must demonstrate a reasonable probability that but for the incompetence of counsel, he would not have entered the plea and instead would have insisted on proceeding to trial. (People v. Breslin, supra, 205 Cal.App.4th at p. 1420.) The most that Stokes says in his brief is that had he known the true consequences of his plea, “there is a reasonable (at the least) possibility” that he would not have entered his no-contest plea and would instead have insisted on going to trial.
“In determining whether a defendant, with effective assistance, would have accepted [or rejected] the [plea] offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. In this context, a defendant’s self-serving statement . . . [regarding whether] with competent advice he or she would [or would not] have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (In re Alvernaz, supra, 2 Cal.4th at p. 938.)
Our review of the entire record, including Stokes’s prior prison term and extensive criminal history spanning more than 27 years, leads us to conclude there was no reasonable probability at the time of his plea that Stokes would have foregone the opportunity for probation and insisted on going to trial. His claim that he would have been eligible for drug court if he had gone to trial and been convicted does not persuade us otherwise. In light of his extensive record, diversion following trial would have been extremely unlikely. His uncorroborated and self-serving suggestions to the contrary are insufficient to establish either ineffective performance of his prior counsel or prejudice.
Stokes was advised of his right to request that his appellate counsel be relieved.
Our full review of the record reveals no issue that requires further briefing.
DISPOSITION
The judgment is affirmed.




_________________________
Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.