People v. Lee CA1/4

Filed 1/9/14 P. v. Lee CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A139176 v. RUSSELL ALLAN LEE, (Lake County Super. Ct. No. CR929840 & Defendant and Appellant. CR932436)

Russell Allan Lee (appellant) appeals from his no contest convictions and resulting sentence in criminal case No. CR929840 to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378), one count of possession of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and one count of possession of marijuana for sale (Health & Saf. Code, § 11359), enhanced by a finding that appellant had a prior admitted conviction for a felony drug charge (Health & Saf. Code, § 11370.2, subd. (c)), and his no contest plea to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and one count of resisting arrest (Pen. Code, § 148, subd. (a)(1)) in criminal case No. CR932436. Appellant’s 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 Ca1.3d 436. Counsel’s declaration states he has notified appellant that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right

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personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally. We note that appellant has not obtained a certificate of probable cause, which is required by Penal Code section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. A certificate is not required when the notice of appeal states, as appellant’s does here, that the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Accordingly, we have reviewed the whole record pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Ca1.4th 106, focusing upon grounds for appeal arising after entry of the plea. Having done so, we conclude that there is no arguable issue on appeal. PROCEDURAL AND MATERIAL FACTUAL BACKGROUND OF CASE A seven-count information was filed by the Lake County District Attorney’s Office on August 8, 2012, charging appellant with one count of possession of methamphetamine for sale (Count 1—Health & Saf. Code, § 11378), one count of possession of methamphetamine (Count 2—Health & Saf. Code, § 11379, subd. (a)), one count of cultivation of marijuana (Count 3—Health & Saf. Code, § 11358), one count of possession of marijuana for sale (Count 4—Health & Saf. Code, § 11359), a misdemeanor count of being in possession of tear gas after having been convicted of a prior felony (Count 5—Pen. Code, § 22810, subd. (a)), a misdemeanor count of being under the influence of methamphetamine (Count 6—Health & Saf. Code, § 11550, subd. (a)), and a misdemeanor count of being in possession of drug paraphernalia (Count 7—Health & Saf. Code, § 11364.1). As to Counts 1 and 2, the information also contained a special sentencing allegation charging that appellant had a prior drug conviction, within the meaning of Health and Safety Code section 11370.2, subdivision (c). At the arraignment on the information, appellant pleaded not guilty to all of the charges and denied the special allegation.