Filed 1/30/15 P. v. Contreras CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 8.11 15(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
RICHARD GALINDO CONTRER AS , Defendant and Appellant. F067905
(Super. Ct. No. VCF273928B )

OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. H.N. Papadakis, Judge. John L. Staley , under appointment by the Court of Appeal, for Defendant an d Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

-

* Before Levy, Acting P.J., Cornell, J., and Detjen, J.2

Appellant, R ichard Galindo Contreras , pled guilty in case No. VCF273928B to possession for sale of a controlled substance (Health & Saf. Cod e, § 11351) 1 and possession of drug paraphernalia (§ 11364.1 , subd. (a) ) and admitted six prior prison term
enhancement s (Pen. Code, § 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code , § 667, subds. (b)

- (i)).
In case No. PRCS000378 Contreras admitted that he violated the term s of his Post

Release Community Supervision

. Following independent review of the record pursuant

to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PR OCEDURAL HISTORY On November 8, 2011, Contreras was released from Pelican Bay State Prison o n Post

- Release Community Supervision. On February 17, 2012, Contreras failed to report to probation as instructe d. On February 21, 2012, Contreras provided a u rine sample that tested positive for opiates. On September 28, 201 2, at approximately 11:47 a.m. , officers from the Visalia Police Department and the TARGET drug task force went to Contreras’s residence to serve a search warrant. After knocking on the door and receiving no answer the officer s forced entry into the house and in the front room encountered Contreras’s father, who
was confined to a wheelchair. The officers searched the house and detained Contreras
and codefendant , Willie Champion , in a ba throom. During a visual inspection of Contreras’s bed room officer s found two syringes , each containing a heroin solution that was ready to be injected. When asked if there were

an y other illegal items in the bedroom Contreras stated that everything was i n a green

1 All further statutory references are to the Health and Safety Code unless otherwise indicated.3

canvas bag. A search of the bag uncovered numerous bindles of heroin w eighing approximately 5.9 grams with packaging , numerous used syringes, two digital scales, and a metal spoon. The officers also found a single plastic baggie containing hero in on the
floor (case No. VCF273928B)

. On December 5 , 2012, in case No. PRC S000378 a Petition of Revocation of Community Service was filed alleging that Contreras violated the condition s of his community release

. On December 24, 2012, the district a ttorney filed an information c h arging Contreras with possession for sale of heroin (count 1), possession of heroin (count 2/§ 11350, subd. (a)), possession o f drug paraphernalia (count 3), six prior prison

term enhancements , and an allegation that Contrera s had a prior conviction within the meaning of the three strikes law

. On M a rch 1, 2013, Contreras entered his plea in case No. VCF273928B , as previously noted, in e x change for the dismissal of count 2 and a stipulated term of 10
years. Contreras also a dmitted that he violated the terms of his release in case
No. PRCS000378.
On or about May 7, 2013, Contreras filed a motion to withdraw his plea a nd for appointment of counsel. On May 16 , 2013, the court appointed substitute counsel for Contreras to r eview his case and determine whether to file a motion to withdraw plea on Contreras’s behalf. On June 26, 2013, the court denied Contreras’s motion to withdraw plea which substitute counsel presented orally. The court then sentenced Contreras in case
N o. VCF273928B to an aggregate 10

- year prison term : the mitigated term of two years on his possession for sale of heroin conviction, doubled to four years because of Contreras’s strike conviction, six one

- year prior prison term enhancements , no additional4

time on his conviction for possession of drug paraphernalia , and a concurrent 180 days for violating the terms of his release in case No. PRCS000378

. On August 26, 2013, Contreras filed a notice of appeal. Also on that date, the court denied his reques t for a certificate of probable cause. Contreras’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. ( People v. Wende , supra , 25 Cal.3d 436.) However, in a docume nt filed on December 19, 2013 , C ontreras contends he was denied the effective assistance of counsel during plea bargaining b ecause defense counsel coerced him into taking a plea bargain by telling Contreras: (1) he did not have time to take his case to trial; ( 2) Contreras would receive a sentence of 16 years if he did; and ( 3) that Contreras would receive 50 percent
conduct credit. Contreras also contends that his defense counsel was ineffective because
he did not assist him i n filing his appeal and in obtaining a certificate of probable cause.
Contreras ’s claims, however, are not cognizable on appeal.

“ The purpose of requiring defendants to obtain certificates of probable cause is to save judicial time and prevent frivolous appeals of matters that were resolved by plea or
admission. [Citations.] Matters occurring before a plea of guilty or no contest that affect the plea’ s validity cannot be raised without a certificate of probable cause. [Citation.]” ( People v. Sem (2014 ) 229 Cal.App. 4th 1176, 1186 .) Here, Contreras requested a certificate of probable cause from the trial court and it was denied. Further, his contention that he was not provided the effective assistance of counsel in entering his plea involve s matter s t hat occurred prior to Contreras entering his plea and go to its validity

. Therefore , since Contreras did not obtain a certificate of probable cause, this contention is not cognizable on appeal. Additionally, his claim that
he was denied the effective ass istance of counsel in entering his plea is not cognizable on appeal for the additional reason that it relies on facts outside the record. ( People v.5

Neilson (2007) 154 Cal.App.4th 1529 , 1534 [“An appellate court’ s review is limited to
consideration of the matters contained in the appellate record ”].) Similarly, Contreras’s
contention that d efense counsel provided in effective representation by failing to assist him in filing an appeal and obtaining a certificate of probable cause is also not cognizable

on appeal because it relies on facts outside the record. ( Ibid. )
F ollowing an independent review of the record we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
T h e judgment is affirmed.