The People v. Pompey CA6

Filed 9/6/13 P. v. Pompey CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038897 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 211412)

v.

JAMES ANTHONY POMPEY,

Defendant and Appellant.

Pursuant to a negotiated disposition, on August 3, 2012, James Pompey pleaded guilty to one count of conspiracy to commit a crime, to wit sell cocaine (Pen. Code, § 182, subd. (a)(1), Health & Saf. Code, § 11352, count nine) one count of possession of over $100,000 for purchase of a controlled substance (Health & Saf. Code, § 11370.6, count 26) and one count of possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1), count 27).1 Defendant admitted that the narcotics involved in the conspiracy to sell cocaine exceeded 80 kilograms, 40 kilograms, and 10 kilograms in weight and that he was substantially involved in the planning, direction, execution, or financing of the offense. (Health & Saf. Code, § 11370.4, subd. (a)(3), (5) & (6).) Further, he admitted that he had a prior conviction for possession for sale of cocaine

1 Section 12021 was repealed effective January 1, 2012, (Stats. 2010, ch. 711, § 4) and reenacted with some changes as section 29800 (Stats. 2010, ch. 711, § 6, operative January 1, 2012).

(Health & Saf. Code, § 11351.5) within the meaning of Health and Safety Code section 11370.6.2 In exchange for his guilty pleas, defendant was promised a 16 year eight month prison sentence to be served concurrently with a federal sentence that had been imposed. On August 9, 2012, the court sentenced defendant pursuant to the terms of the negotiated disposition; the court imposed the upper term of five years for the conspiracy to sell cocaine with a consecutive 10 years for the weight enhancement, plus one year (one third the midterm) for possessing money to purchase a controlled substance and an eight month consecutive sentence for the felon in possession charge. The court imposed various fines and fees and awarded defendant a total of 2481 days of presentence custody credits. Defendant filed a timely notice of appeal. He sought, but was denied a certificate of probable cause. In his request for a certificate of probable cause, defendant alleged that the pleas in this case were contingent upon him being sentenced concurrently to his existing federal sentence in Georgia. He asserted that he was supposed to be released from the custody of the State of California on August 9, 2012, so that federal custody credits would accrue, and the balance of his California sentence was to be served in the federal facility. Defendant stated that in spite of efforts by the parties and the court, he remained in the custody of the State of California and had not been released to federal custody. He sought to withdraw his plea because "the plea agreement in this case as adopted by the parties and accepted by the Court [could] not be effectuated." Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was