Filed 5/28/14 P. v. Lupien CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. PAUL RUSSELL LUPIEN, Defendant and Appellant. D064207

(Super. Ct. No. SCD242206)

APPEAL from a judgment of the Superi or Court of San Diego County, Peter L. Gallagher, Judge. Affirmed.

John L. Staley, under appointment by th e Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. On April 5, 2013, a jury found defendant and appellant Paul Russell Lupien guilty of one count of robbery in viol ation of Penal Code section 211. 1 The jury al so found that

1 All further statutory references are to the Penal Code.2 Lupien had committed the robb ery while on probation within the meaning of section 1203, subdivision (k), had been convicted of a violent or serious felony within the meaning of section 667, subdivisions (b) thro ugh (i), and had been convicted of a serious felony within the meaning of section 667.5, subdivision (b). Prior to trial, Lupien moved to strike his earlier 1986 conviction on the grounds his plea in that case was invalid because he had neither been properly advised nor waived

his Boykin/Tahl 2 rights. The trial court, after revi ewing the minute order entered at the time of Lupien's plea in the 1986 case, found that Lupien had been properly advised and had waived his right against sel f-incrimination, to confront witn esses, and to a jury trial. Accordingly, the trial cour t denied Lupien's motion. At sentencing, the trial court dismissed th e section 667 "strike" prior under section 1385 and dismissed one of the prior prison te rm enhancements. Lupien was sentenced to the upper term of five years on the robbery conviction (§ 213, subd. (a)(2)), a consecutive five-year term for the prior serious felony (§ 667, subd. (a)), and three consecutive oneyear terms on the three prior prison term enha ncements (§ 667.5, subd. (b)). Against his total 13-year prison term, Lupien was given 25 6 days of custody cred its and 39 days of conduct credits. He was ordered to pay a $3 ,000 restitution fine, and a parole revocation fine in that amount was stayed. Lupien filed a timely notice of appeal.

2 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.3 DISCUSSION Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel suggests, as an issue for our review, whether the trial court er red in denying Lupien's motion to strike his prior conviction. We granted Lupien permission to file a brief on his own behalf, and he did so. Lupien also filed a petition for a writ of habeas corpus, whic h we have ordered considered with his appeal. In his brief, Lu pien argues the trial court erred in denying his motion to strike his prior conviction. In pa rticular, he argues the trial court should not have relied solely on the minute order, which shows that the trial court in the prior case advised Lupien of his right agai nst self-incrimination, his right to confront witnesses, and his right to a jury trial. Although, as the trial court itself i ndicated, a reporter's transcript of Boykin-Tahl admonishments and their waiver is a preferab le means of establishing compliance, it is not required. In People v. Pride (1992) 3 Cal.4th 195, 255-256, a case where no reporter's transcript was available and, unlik e the minute order here, the minute order did not expressly refer to all three Boykin-Tahl admonishments, the court nonetheless held that a trial court could infer compliance from testimony as to the deceased trial judge's "habit and custom." Here, the minute order expr essly refers to Lupien's right against selfincrimination, his right to conf ront witnesses, and his right to a jury trial and indicates4 that he waived them. In light of People v. Pride , supra , at pages 255-256, the minute

order in this record was suffici ent to establish compliance with Boykin/Tahl

. Our review of the record pursuant to People v. Wende , supra , 25 Cal.3d 436 has disclosed no reasonably ar guable appellate issues. We find Lupien was adequately repr esented both at trial and on appeal.

DISPOSITION The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

AARON, J.