Filed 10/20/17 P. v. Escercega CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Rafael David Escercega appeals following his guilty plea to possession of a dirk or dagger in violation of Penal Code section 21310 that carried an enhanced sentence due to his commission of a prior serious felony.[1] 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. We requested and reviewed supplemental briefing on the content and effect of Escercega’s plea as support for his sentence. We now conclude there are no issues requiring further review. We affirm with directions to the trial court to modify the abstract of judgment to reflect the basis for the four-year sentence imposed on Escercega for possession of a dirk or dagger.

BACKGROUND

The probation report in this case reflects that Escercega was apprehended one night in the vicinity of his ex-girlfriend’s home after she had called police to report that he was possibly violating a restraining order. He had a knife in the front pocket of his pants and a stun gun in a holster on his hip.

Escercega was charged with felony possession of a concealed dirk or dagger in violation of section 21310, misdemeanor possession of a stun gun in violation of section 22610, subdivision (a) and misdemeanor prowling in violation of section 647, subdivision (h). Two enhancements were alleged under sections 667, subdivisions (d) and (e) and section 1170.12, subdivisions (b) and (c) due to Escercega’s commitment of prior serious or violent felonies. One enhancement was alleged under section 667.5, subdivision (b) for his service of a term in prison within five years of the charged offenses.

In a negotiated disposition, Escercega agreed to plead no contest to one count of felony possession of a dirk or dagger and one count of misdemeanor prowling. His sentence was to be enhanced due to his admission of one prior serious felony conviction to arrive at a total four-year prison sentence. In addition to the description of the plea provided in open court in Escercega’s presence, the written plea agreement reflects the agreed upon charges and a single enhancement for his commission of a serious or violent prior felony. The other enhancements and the stun gun charge were to be dismissed.

The court accepted Escercega’s no contest pleas to possession of a dirk or dagger and misdemeanor prowling, and the parties stipulated to a factual basis for the pleas. Escercega was sentenced to four years in state prison in accord with the plea agreement and the court’s approval pursuant to section 1192.5. The People moved to dismiss the remaining enhancement and the misdemeanor charge for possession of a stun gun.

The court imposed a restitution fine of $1,200, and a revocation restitution fine in the same amount, suspended unless parole is revoked. Appeal was deemed timely filed under the prison delivery rule.[2]

DISCUSSION

Escercega did not seek or obtain a certificate of probable cause from the trial court. Absent a certificate of probable cause, an appeal by a defendant from a judgment entered on a guilty plea may only raise issues falling within two “noncertificate” categories, namely, “issues relating to the validity of a search and seizure . . . and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780, 776.)

The mid-term sentence for possession of a dirk or dagger in violation of section 21310 is two years. (§§ 21310, 1170, subd. (h)(1).) The mid-term sentence may be doubled to four years when the defendant has been convicted of a prior serious or violent felony. (§ 1170.12, subd. (b).) That is apparently the basis for Escercega’s four-year prison sentence.

Because the reporter’s transcript of Escercega’s plea proceedings does not reflect his express agreement to the enhancement imposed for his commission of a prior serious or violent felony, we asked counsel to address the legality of Escercega’s sentence in light of the record, and whether this case should be remanded for further proceedings. Following review of counsel’s submissions and further study of the record, we affirm, but direct that the abstract of judgment be amended to reflect the enhancement of the two-year mid-term sentence under section 1170.12, subdivision (b). (See People v. Williams (1980) 103 Cal.App.3d 507.)

Escercega’s counsel advised him of his intention to file a Wende brief in this case, and of Escercega’s right to file a brief on his own behalf. He has not done so. Escercega was also advised of his right to request that his counsel be relieved. Our review of the record reveals no issue that warrants further briefing.

DISPOSITION

The judgment is affirmed with directions to amend the abstract of judgment to reflect that the mid-term sentence imposed for violation of section 21310 was doubled to four-years under section 1170.12, subdivision (b).

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Siggins, J.

We concur:

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McGuiness, P.J.

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Pollak, J.