Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR197591
Bruiniers, J.
Pursuant to a negotiated disposition, appellant Smith pleaded no contest to a felony violation of Penal Code section 422, making a criminal threat, and admitted that he personally used a firearm in the commission of that offense (§ 12022.5, subd. (a)(1)). He was sentenced to the agreed upon aggregate term of four years and four months in state prison. The trial court granted Smith’s request for a certificate of probable cause, and he appeals.
All further code references are to the Penal Code unless otherwise indicated.
Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that appellant has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.)
People v. Wende (1979) 25 Cal.3d 436.
We find no arguable issues and therefore affirm.
I. Factual and Procedural Background
On April 18, 2008, Smith went to the home of his ex-wife. While there he became involved in an argument with Michael Carroll, an acquaintance of his ex-wife. Smith pointed a gun at Carroll’s head and said: “I ought to kick your ass” and “I ought to put a bullet in your ass.” Carroll described the gun as a small silver.22 caliber automatic pistol.
The facts are taken from the preliminary hearing testimony.
Smith was originally charged with the felonies of making a criminal threat (§ 422) and being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1)), and with a misdemeanor count of brandishing a firearm (§ 417, subd. (a)(2)). A sentencing enhancement under section 667.5 was alleged on the basis that Smith had previously served a term in state prison, and it was alleged that the criminal threat was a serious felony within the meaning of the Three Strikes Law (§ 1192.7, subd. (c)).
After Smith was held to answer at the preliminary hearing, a felony information charged an additional count of assault with a semiautomatic firearm (§ 245, subd. (b)), and sentencing enhancements under sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a)(1) were alleged, making assault and criminal threat charges serious felonies (§ 1192.7, subd. (c)(8)) and violent felonies (§ 667.5, subd. (c)(8)) within the meaning of the Three Strikes Law (§ 1192.7, subd. (c)).
On July 27, 2009, Smith entered a plea of no contest to the felony criminal threat charge and admitted that he personally used a firearm in the commission of that offense. He was represented by counsel and signed a waiver of constitutional rights and declaration in support of defendant’s motion to change plea. The court found that Smith made knowing, intelligent and voluntary waiver of rights and accepted the plea.
Pursuant to the terms of his negotiated plea, the remaining charges and the enhancement allegations were dismissed. The terms of the plea agreement provided for a stipulated sentence of four years and four months (the lower term of 16 months on the criminal threat count, plus a consecutive lower term of 36 months for the firearm enhancement). Smith waived his right to a presentence probation report and was immediately sentenced in accordance with the plea terms. He received presentence credit of 105 days for time served (92 days of actual custody credit under § 2900.5, and 13 days of conduct credits under § 2933.1). In addition to imposition of the prison term, the court imposed a $400 restitution fine (§ 1202.4) and suspended imposition of a $400 parole revocation fine.
A separately charged misdemeanor violation of section 290 was also dismissed.
Smith was apparently already in the custody of the Department of Corrections and Rehabilitation on other matters, and credits were calculated from the time of his demand for trial under section 1381.
Smith filed a timely notice of appeal and the court granted his request for a certificate of probable cause.
II. Discussion
Smith’s notice of appeal challenges only the validity of the plea. In his request for certificate of probable cause, Smith complains that, after he told his defense attorney that he had spoken to his ex-wife and that no witnesses would be appearing against him, his jail telephone records were obtained, and he was ordered by the court to have no contact with his ex-wife or with the victim. He complains that his attorney advised him to accept the plea offer, and that she did not “have my best interest at heart.” He denied guilt and said that he had been “railroaded by my attorney and [the] DA.”
To the extent that Smith alleges ineffective assistance of his trial counsel, nothing in the record before us raises any arguable issue. To establish a claim of incompetence of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686–688, 694–695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92–93; People v. Ledesma (1987) 43 Cal.3d 171, 215–218.) Generally, prejudice must be affirmatively proved. (Strickland, supra, at p. 693.) No evidence of ineffective assistance is presented. Such claims are normally appropriately raised in a petition for writ of habeas corpus, “where relevant facts and circumstances not reflected in the record on appeal... can be brought to light....” (See People v. Snow (2003) 30 Cal.4th 43, 111.) Further, by entry of his plea, Smith has waived any claim that counsel was ineffective in the investigation or presentation of his case. By admitting the offense Smith knowingly gave up any defenses in order to take advantage of the plea bargain, and necessarily waived any claim that his attorney was ineffective for failing to present defense that defendant thought he might have had. (Marlin, supra, 24 Cal.App.4th at p. 567.)
There is an exception to this rule only in circumstances where ineffective assistance of counsel rises to a constitutional issue going to the legality of the proceedings. (People v. Marlin (2004) 124 Cal.App.4th 559, 567 (Marlin).)
To the extent that he contests his guilt of the underlying charges, he presents no arguable issue for appellate review. “By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] ‘[I]ssues which merely go to the guilt or innocence of a defendant are “removed from consideration” by entry of the plea.’ [Citation.]” (People v. Meyer (1986) 183 Cal.App.3d 1150, 1157.)
Smith presents no arguable issue as to the voluntariness of his plea. He faced felony charges with a potential for imprisonment for up to 13 years as well as onerous future consequences under the Three Strikes Law. With the assistance of counsel, Smith initialed and signed a waiver of rights form waiving his rights to a speedy and public trial, to confront and cross-examine the witnesses against him, to subpoena witnesses and present evidence, and his right against self-incrimination. Smith confirmed that he had the opportunity to raise any questions about the waiver form with his attorney. The trial court found that Smith’s waiver of rights was knowing, intelligent and voluntary. The court found a factual basis for the plea in the testimony presented at the preliminary hearing. While Smith indicated some initial reluctance, he confirmed that he was accepting the disposition because of the far more serious potential sentence that he faced. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. (North Carolina v. Alford (1970) 400 U.S. 25, 37.) The Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence. (Id. at p. 36.)
While Smith’s certificate of probable cause does not challenge his sentence, we note that his presentence credits appear properly calculated. Several appellate courts have recently considered the retroactive application of recent amendments to section 4019, granting additional presentence credits for good conduct. (See People v. Pelayo (May 6, 2010, A123042) ___Cal.App.4th___ [2010 Cal.App. Lexis 627]; People v. Brown (2010) 182 Cal.App.4th 1354; People v. House (2010) 183 Cal.App.4th 1049; People v. Delgado (Apr. 29, 2010, B213271) __ Cal.App.4th __ [2010 Cal.App. Lexis 600]; People v. Landon (Apr. 13, 2010, A123779) __ Cal.App.4th __ [2010 Cal.App. Lexis 517]; cf. People v. Rodriguez (2010) 183 Cal.App.4th 1.) Smith’s conviction for a violent felony (§ 2933.1) bars him from receiving additional credit under the amended statute.
III. Disposition
The judgment is affirmed
We concur: Jones, P. J., Simons, J.