Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF1541, Roger B. Robbins, Judge.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Bobby Gene Peden II pleaded guilty to unlawfully taking a vehicle and receiving stolen property. We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider the following possible issues pertaining to whether (1) the prior prison term allegation contained in the felony complaint was implicitly dismissed by the trial court, and (2) defendant’s guilty plea was invalid because he pleaded guilty to both taking a vehicle and receiving/retaining stolen property based on the same act.
On October 22, 2009, this court provided defendant 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
We have examined the entire record and counsel’s Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Background
Defendant was charged in a felony complaint with one count of unlawfully taking a 2006 Chevrolet Avalanche in violation of Vehicle Code section 10851, subdivision (a) and one count of receiving stolen property, namely, the 2006 Chevrolet Avalanche in violation of Penal Code section 415. The felony complaint alleged, pursuant to Penal Code section 667.5, subdivision (b), that defendant had previously been convicted of a felony offense for which he served a prison term. Defendant pleaded not guilty as to both counts and denied the prior prison term allegation.
The trial court granted defendant’s motion to withdraw his not guilty plea as to both counts. Defendant pleaded guilty to both counts, asserting the following factual basis for his guilty plea: “In Orange County, California, on May 6, 2008, I did willfully and unlawfully take a motor vehicle, not my own, without the consent of the owner with the intent to permanently deprive the owner of possession, and retained possession of the vehicle knowing it to be stolen.” The trial court accepted defendant’s plea, suspended imposition of sentence as to the first count, and placed defendant on three years’ formal probation conditioned in part on defendant serving 90 days in the Orange County jail. The court stayed sentence on the second count pursuant to Penal Code section 654. The court’s minute order stated the prior conviction allegation was dismissed.
Defendant appealed. He requested a certificate of probable cause on the following grounds: “I was told by my appointed attorney... th[at] if I plead guilty he would get me out of jail that day, which didn’t happen. He also told me that once [I] was out, I could appeal my case and ask for my day in court. [He] also said that he would help me with my appeal. I have made several calls to his cell phone and to his office, leaving messages, and he has never returned my calls. I have several [witnesses] that can prove I’m not guilty but the public defenders, all (7) seven of them, didn’t want to deal with it so they had me in and out of court for 8 months. The RO called the District Attorney’s office and told them that she did not want to press charges and she wasn’t going to show up in court because she knows the truck was not stolen. She has told others, including myself that she reported it stolen to ‘Teach her son a lesson.[’] As a result, my rights to face my accusers was not there and there was no case, yet kept me locked up.” The trial court denied defendant’s request for a certificate of probable cause.
Analysis of Potential Issues
Appointed counsel suggested we consider the following possible issues: (1) was the prior prison term allegation admitted by defendant “implicitly dismissed?” and (2) was defendant’s “guilty plea unauthorized in that a defendant may not be convicted of both vehicle taking and receiv[i]ng/retaining stolen property based on the same act?”
As to the first issue, the record shows defendant admitted the prior prison term allegation under Penal Code section 667.5, subdivision (b). Although the reporter’s transcript shows the trial court did not refer to the prior prison term allegation when it imposed sentence, the trial court’s minute order expressly states that the prior prison term allegation was dismissed. The proposed disposition of the case contained in the advisement and waiver of rights for a felony guilty plea form twice states: “Dismiss prison prior.” In the form addressing the terms and conditions of defendant’s felony probation, “Other conditions” included “dismiss prison prior.”
In In re Candelario (1970) 3 Cal.3d 702, 706, the California Supreme Court stated: “Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. [Fn. omitted.] [Citation.]... ‘[B]eing silent upon the matter of a prior conviction, the judgment must be construed as one imposing a sentence for a first offense only.’” (See People v. Mesa (1975) 14 Cal.3d 466, 472 [“In pronouncing judgment, the trial judge must make it clear the defendant is sentenced as one whose prior conviction has been admitted or found true. The trial judge here having failed to make it clear that he intended to sentence defendant as a prior offender, the reference to two prior robbery convictions is stricken from the abstract of judgment”]; but see People v. Turner (1998) 67 Cal.App.4th 1258, 1268 [“The concept of leniency contained within People [v.] Mesa and In re Candelario is no longer valid with regard to [Penal Code] section 667, subdivision (a)” in light of statutory amendments prohibiting trial courts from striking prior conviction enhancements for serious felonies under section 667, subdivision (a)].)
There is no comparable rule that applies to Penal Code section 667.5, subdivision (b).
The trial court did not pronounce judgment as to the prior prison term allegation under Penal Code section 667.5, subdivision (b) and, as described ante, did not intend to pronounce such judgment. As in In re Candelario, supra, 3 Cal.3d 702, the trial court did not impose sentence on the prior prison term allegation. The appellate court in People v. Chagolla (1983) 144 Cal.App.3d 422, 434 interpreted In re Candelario to hold that the trial court’s failure to include the prior conviction allegation in the judgment constituted an “implied dismissal” of that allegation. Whether we treat the prior prison term allegation as impliedly dismissed or simply omitted from the pronounced judgment, it is not part of the judgment in this case.
As to the second issue, any challenge to the lawfulness of the judgment of conviction entered after defendant’s plea is not cognizable on appeal because defendant did not obtain a certificate of probable cause. Penal Code section 1237.5, subdivision (b) provides in part that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere” unless “[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (See Cal. Rules of Court, rule 8.304(b).) In People v. Jones (1995) 33 Cal.App.4th 1087, 1091, the defendant argued the judgment of conviction had to be vacated because she pleaded guilty to and was convicted of both stealing and receiving the same property in violation of Penal Code section 496, subdivision (a). Because the defendant failed to obtain a certificate of probable cause and thus failed to comply with section 1237.5, the appellate court dismissed her appeal challenging the validity of her plea and subsequent conviction. (People v. Jones, supra, at p. 1089.)
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J.IKOLA, J.