Filed 6/16/16 P. v. Jones CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GARRY LYNN JONES,

Defendant and Appellant.

F070389

(Super. Ct. Nos. BF139250A & 

BF153532A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Charles R. 

Brehmer, Michael B. Lewis, H.A. Staley†, Michael G. Bush, Thomas S. Clarke, and 

Colette M. Humphrey, Judges.

‡

 

* Before Detjen, Acting P.J., Franson, J. and Peña, J.

† Retired Judge of the Kern Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.

‡

In case number BF139250A Judge Brehmer presided in the change of plea hearing 

and Judge Lewis imposed sentence. In case number BF153532A Judge Staley presided 

in the preliminary hearing, Judge Bush ruled on the motion to set aside the information, 

Judge Clarke presided in the change of plea hearing, and Judge Humphrey imposed 

sentence.
2.

Carol Foster, under appointment by the Court of Appeal, for Defendant and

Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and

Respondent.

-ooOooGarry Lynn Jones was charged with various crimes in two separate cases filed by 

the Kern County District Attorney’s office. He entered into a plea agreement in both 

cases. He now appeals the judgment entered in these cases. Appellate counsel filed a 

brief asserting she did not identify any arguable issues in either case. We reach the same 

conclusion after thoroughly reviewing the record, and therefore affirm the judgment. 

FACTUAL AND PROCEDURAL SUMMARY

Case Number BF139250A

On November 8, 2011, the Kern County District Attorney filed a complaint 

charging Jones with (1) possession of cocaine base for sale (Health & Saf. Code, 

§ 11351.5), (2) possession of cocaine while armed with a firearm (Health & Saf. Code, 

§ 11370.1, subd. (a)), (3) possession of a firearm by a felon (Pen. Code, former § 12021, 

subd. (a)(1), now § 29800, subd. (a)(1)),1 and (4) possession of ammunition by a felon 

(former § 12316, subd. (b)(1), now § 30305, subd. (a)(1)). Count 1 alleged that a 

principal was armed with a firearm within the meaning of section 12022, 

subdivision (a)(1), and Jones had previously been convicted of violating Health and 

Safety Code section 11351.5 within the meaning of Health and Safety Code section 

11370.2, subdivision (a). 

On February 23, 2012, Jones entered into a plea agreement wherein he pled guilty 

to the possession of cocaine base for sale count for a sentence of five years in county jail. 

In exchange the prosecutor dismissed the remaining counts and allegations. Jones 

 

1 Statutory references are to the Penal Code unless otherwise indicated.
3.

executed a plea form reflecting the terms of the plea agreement as well as confirming the 

plea was freely and voluntarily made, and waiving his constitutional rights. The trial 

court confirmed Jones understood the form and that he did not have any questions about 

the agreement before accepting his plea. 

On May 18, 2012, Jones was sentenced consistent with the terms of the plea 

agreement. 

Case Number BF153532A

On May 14, 2014, an information filed by the Kern County District Attorney 

charged Jones with (1) possession of a firearm by a felon (§ 29800, subd. (a)(1)), 

(2) possession of ammunition by a felon (§ 30305, subd. (a)(1)), (3) possession of 

cocaine base while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), 

(4) possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and 

(5) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).2 The 

following enhancements were alleged (1) Jones had suffered a prior conviction that 

constituted a strike within the meaning of section 667, subdivisions (b) through (i) (all 

counts), (2) Jones had served a prior prison term within the meaning of section 667.5, 

subdivision (b) (all counts), (3) a principal was armed with a firearm within the meaning 

of section 12022, subdivision (a)(1) (count 2), (4) Jones was personally armed with a

firearm within the meaning of section 12022, subdivision (c) (count 4), and (5) Jones had 

suffered two prior convictions for violation of Health and Safety Code section 11351.5 

within the meaning of Health and Safety Code section 11370.2, subdivision (a) (count 4). 

On July 25, 2014, Jones entered into a plea agreement wherein he agreed to plead 

no contest to counts 1 and 4, and admit the prior conviction that constituted a strike. In 

exchange, he was to be sentenced to the low term of three years on count 4, doubled to 

six years because of the strike prior. The sentence on count 1 was to be imposed 

 

2 The complaint was filed on February 27, 2014. 
4.

concurrently, for a total prison term of six years. The remaining charges and allegations 

were dismissed as part of the agreement. Jones executed a change of plea form which 

was consistent with the terms of the agreement, advised him of the consequences of his 

plea, and secured a waiver of his constitutional rights. The trial court confirmed that 

Jones voluntarily executed the change of plea form, gave up his constitutional rights, and 

did not have any questions about the terms of the agreement before it accepted his plea. 

On September 10, 2014, Jones was sentenced to the agreed upon term of 

imprisonment. At the same hearing the trial court set aside the sentence in case number 

BF139250A, and resentenced Jones to the same five-year term to run concurrent to the 

sentence imposed in case number BF153532A. 

Jones filed a notice of appeal in case number BF153532A indicating he was 

appealing from the sentence imposed. He did not seek a certificate of probable cause. At 

Jones’s request we construed this appeal to be from the judgment entered in both cases. 

DISCUSSION

Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 

asserting she could not identify any arguable issues. On April 6, 2015, we invited Jones 

to advise this court of any issues he wished to have addressed. After obtaining an 

extension of time to respond, Jones failed to identify any issues. 

The notice of appeal was apparently directed at the question of whether the strike 

prior Jones admitted in case number BF153532A actually constituted a strike within the 

meaning of section 667, subdivisions (b) through (i). We reach this conclusion because 

Jones conditioned his plea on the validity of the strike prior. 

The information alleged that in 1987 Jones was convicted of a violation of 

section 245, subdivision (a)(1), “ASSAULT W/DEADLY WEAPON OTHER THAN 

FRM/GBI FORCE-PERSONAL USE.” Section 667, subdivision (e) provides for 

enhanced punishment if the defendant has a prior conviction for a serious or violent 

felony. Section 667, subdivision (d)(1) defines a violent felony as those offenses defined 
5.

in section 667.5, subdivision (c), and defines a serious felony as those offenses defined in 

section 1192.7, subdivision (c). Section 1192.7, subdivision (c)(23) defines as a serious 

felony any felony in which the defendant personally used a dangerous or deadly weapon. 

Since Jones was convicted of assault with a deadly weapon, it would appear he 

committed a serious felony, and the enhanced sentence for a prior strike conviction was 

properly imposed.

We observe the record does not contain any information about the prior strike 

conviction other than the information contained in the information, nor does the record 

reflect why Jones may have thought the prior conviction was not a strike. The record is 

therefore inadequate to reach any conclusion other than the prior conviction was a strike 

within the meaning of the relevant statutes. (See Stasz v. Eisenberg (2010) 190 

Cal.App.4th 1032, 1039 [failure to provide adequate record forfeits contention on 

appeal].)

Our review of the record did not locate any other arguable issues. Jones entered 

into two valid plea agreements. In each case he was adequately advised of his 

constitutional rights, he waived his constitutional rights, he was adequately advised of the 

consequences of his plea, and he was sentenced according to the agreements. 

DISPOSITION

The judgment is affirmed.