(Super. Ct. No. 10F00520)
The opinion of the court was delivered by: Blease, Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal is brought pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
As part of a bargain, defendant pleaded no contest to possession of heroin while in prison (Pen. Code, § 4573.6) and admitted a strike, in exchange for a stipulated sentence of four years in state prison, two years for the substantive offense, doubled for the strike. The stipulated factual basis for the plea showed that on December 4, 2009, defendant possessed heroin while an inmate at Folsom State Prison, and that he had a 2006 robbery conviction.
The trial court sentenced defendant in accordance with the bargain, to four years in state prison. Because defendant was already a sentenced prisoner, he was not entitled to any presentence custody credits in this case.
Defendant filed a timely notice of appeal, but he did not request a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief, and he has done so.
Defendant contends it was improper to subject him to a Three Strikes sentence because he was still serving the prison sentence for his strike conviction when he committed the instant offense. He contends his trial attorney should have filed a Romero motion to strike the strike allegation (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497).
However, the plea bargain called for a stipulated four-year sentence, contemplating a strike sentence. Therefore, defendant cannot attack the strike without a certificate of probable cause, because attacking the strike impliedly attacks the plea. (See People v. Johnson (2009) 47 Cal.4th 668, 678-679.)
Moreover, we are not aware of any authority for the proposition that a strike may not be proven simply because a person has not completed the punishment imposed for that offense, when he or she commits a new offense. The Three Strikes law itself defines a strike in a way that undermines defendant's contention: "The determination of whether a prior conviction is a prior felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor." (Pen. Code, § 1170.12, subd. (b)(1); see People v. Scott (2009) 179 Cal.App.4th 920, 926-927, 931.) Thus, even if no prison term is imposed, a strike is a strike. We fail to see how the fact a prison term imposed for a strike has not been completed would have any bearing on the question.
Having undertaken an examination of the entire record, we find no arguable error that would result in a ...