THE PEOPLE v. FERNANDO ENRIQUEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

O P I N I O NPROCEEDINGS

Appellant, Fernando Enriquez, was charged in a criminal complaint filed July 1, 2010, with selling, furnishing, giving away, or transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a), count one), possession for sale of methamphetamine (Health & Saf.Code, § 11378, count two), and participation in a criminal street gang (Pen.Code, § 186.22, subd. (a), count three).¹  The first two counts alleged appellant committed his offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).   All three counts alleged appellant had a prior serious felony (§ 667, subd. (a)), a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds.(c)-(j) & 1170.12, subds. (a)-(e)) and two prior prison term enhancements (§ 667.5, subd. (b)).

On August 10, 2010, appellant entered into a plea agreement in which he would admit felony count two and the prior serious felony “strike” allegation.   Appellant would receive a stipulated upper term sentence of three years, doubled to six years pursuant to the three strikes law, and the remaining allegations would be dismissed.   Appellant executed a felony advisement of rights, waiver and plea form acknowledging the terms of the plea agreement, the consequences of the plea, and a waiver of his constitutional rights pursuant to Boykin /Tahl.²

The trial court established that appellant understood the plea form, initialed and signed it, and understood the rights he was waiving.   The parties stipulated to a factual basis for the plea.³  Appellant pled no contest to count two and admitted the strike allegation.

On September 29, 2010, the court denied appellant's request pursuant to People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 to dismiss the strike allegation.   The court sentenced appellant to prison for three years, and doubled the sentence to six years pursuant to the three strikes law.   The court granted appellant custody credits of 93 days plus conduct credits of 46 days for total credits of 139 days.⁴  Appellant failed to obtain a certificate of probable cause.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (People v. Wende (1979) 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on January 14, 2011, we invited appellant to submit additional briefing.   To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122..  FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122.

FN3. According to the probation officer's report, during a traffic stop on June 29, 2010, appellant, who was a passenger, exited the vehicle and threw something into a flower bed.   After a brief struggle with a pursuing officer, appellant was arrested.   The item appellant threw into the flower bed contained 3.63 grams of methamphetamine.   On October 6, 2004, appellant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1))..  FN3. According to the probation officer's report, during a traffic stop on June 29, 2010, appellant, who was a passenger, exited the vehicle and threw something into a flower bed.   After a brief struggle with a pursuing officer, appellant was arrested.   The item appellant threw into the flower bed contained 3.63 grams of methamphetamine.   On October 6, 2004, appellant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)).

FN4. Appellant is not entitled to receive additional custody credits pursuant to section 4019 as amended on January 25, 2010.   Because appellant has a prior serious felony conviction for assault with a deadly weapon that qualified as a serious felony conviction and a strike under section 1192.7, subdivision (c)(31), he is not entitled to additional one-for-one custody credits under section 4019 even if this statute is found to apply retroactively. (§ 4019, subds.(b)(2) & (c)(2).).  FN4. Appellant is not entitled to receive additional custody credits pursuant to section 4019 as amended on January 25, 2010.   Because appellant has a prior serious felony conviction for assault with a deadly weapon that qualified as a serious felony conviction and a strike under section 1192.7, subdivision (c)(31), he is not entitled to additional one-for-one custody credits under section 4019 even if this statute is found to apply retroactively. (§ 4019, subds.(b)(2) & (c)(2).)

THE COURT * FN*.  Before Gomes, Acting P.J., Poochigian, J., and Detjen, J.