Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA071985, Philip S. Gutierrez, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Julio Cesar Lizarraga appeals from the judgment entered following his no contest plea to possession of marijuana for sale, count 1 (Health & Saf. Code, § 11359), maintaining a place for selling or using a controlled substance, count 2 (Health & Saf. Code, § 11366), possession of a firearm by a felon, count 3 (Pen. Code, § 12021, subd. (a)(1)), possession of ammunition, count 4 (Pen. Code, § 12316, subd. (b)(1)), and child abuse, count 5 (Pen. Code, § 273a, subd. (a)). He admitted he suffered a prior conviction for attempting to burn (Pen. Code, § 455) and second degree burglary (Pen. Code, § 459). He was sentenced to prison for a total of four years, consisting of the low term of two years, doubled pursuant to the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b) - (i)) for count 5 and a concurrent term of 16 months, doubled for two years and eight months for count 3. Sentence on the remaining counts was stayed pursuant to Penal Code section 654. Appellant contends the trial court erroneously doubled the base term because attempt to burn in violation of Penal Code section 455 is neither a violent felony within the meaning of section 667.5, subdivision (c) nor a serious felony within the meaning of section 1192.7, subdivision (c). Additionally, he claims doubling the base term was unauthorized because his plea to the prior was invalid. For reasons stated in the opinion we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The record reflects that on August 18, 2005, almost 1,000 pounds of marijuana, shrink wrapped into 50-pound bales, were found in appellant’s home. Additionally, a search of appellant’s master bedroom revealed boxes of live .38-caliber ammunition. A fully loaded .38-caliber handgun was found under a nightstand within reach of appellant’s three small children.
Pursuant to negotiations, appellant entered a no contest plea to all counts and admitted that on January 12, 1999, he suffered a prior conviction for violating Penal Code section 455, attempting to burn. He also admitted that on August 13, 1999, he suffered a prior conviction and served a prison term within the meaning of Penal Code section 667.5, subdivision (b) for violating Penal Code section 459, second degree burglary. It was agreed that appellant could challenge whether the attempt to burn conviction constituted a strike within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)–(d) and 667, subds. (b)–(i)) and whether it should be dismissed under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The probation report reflects that appellant committed the crime on December 17, 1998
Thereafter, the trial court concluded the attempt to burn conviction was a strike and denied appellant’s Romero motion.
DISCUSSION
I
Appellant contends the trial court erroneously doubled the base term because attempt to burn in violation of Penal Code section 455 is neither a violent felony within the meaning of Penal Code section 667.5, subdivision (c) nor a serious felony within the meaning of Penal Code section 1192.7 and he did not plead to violating Penal Code sections 664/451.
Appellant previously claimed in an earlier appeal (B192129) from an order denying a writ of error coram nobis, that his prior conviction for attempt to burn was not a serious or violent felony within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).) In an opinion filed November 7, 2007, we rejected this contention.
In People v. Flores (1995) 39 Cal.App.4th 1811, the court held that under the plain language of Penal Code section 1192.7, subdivision (c)(14) and (27) a violation of Penal Code section 455 is a serious felony. (Id. at p. 1814.) We agree and decline appellant’s invitation to depart from the holding of Flores.
II
Appellant contends in the alternative that doubling the base term was unauthorized because appellant’s plea in 1999 to violating Penal Code section 455 in case No. TA052620 was constitutionally invalid. He adopts by reference the arguments raised in his appeal in case number B192129. Appellant’s challenge has not been brought in the appropriate jurisdiction. “[A] defendant whose sentence for a noncapital offense is subject to enhancement because of a prior conviction may not employ the current prosecution as a forum for challenging the validity of the prior conviction based upon alleged ineffective assistance of counsel in the prior proceeding.” (Garcia v. Superior Court (1997) 14 Cal.4th 953, 966, fn. omitted.)
On November 7, 2007, we filed our opinion in People v. Lizarraga (B192129) concluding that his claim alleged a mistake of law attributed to his trial counsel and that coram nobis did not lie for a mistake of law and ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.