Filed 4/30/14 P. v. Gutierrez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,                                   A140126

v.                                                                  (Mendocino County
GUADALUPE LEANDRO GUTIERREZ,                                        Super. Ct. Nos. SCUKCRCR1371236,
                                                                    SCUKCRCR1372382)
         Defendant and Appellant.


                   Guadalupe Leandro Gutierrez appeals from a final judgment after no
contest and guilty pleas, respectively, in cases Nos. SCUKCRCR1371236 and
SCUKCRCR1372382. His counsel has raised no issues and asks this court for an
independent review of the record to determine whether there are any issues that would, if
resolved favorably to defendant, result in reversal or modification of the judgment.
(People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith
v. Robbins (2000) 528 U.S. 259.) Counsel notified defendant that he could file his own
supplemental brief, raising any points he chooses to call to this court’s attention. No
supplemental brief has been received from defendant. Upon independent review of the
record, we find no arguable issues that require further briefing. We do find an error in
the abstract of judgment. Accordingly, we will remand the matter for correction of the
abstract of judgment, and affirm the judgment in all other respects.
            STATEMENT OF FACTS AND PROCEDURAL HISTORY1
       On January 26, 2013, Mendocino County Sheriff’s Deputies Eric Riboli and Luis
Espinoza were dispatched to the defendant’s apartment with a report of possible gunshots
being fired from the location. The deputies observed an expended 20-gauge shotgun
shell on the ground near the front door. The deputies contacted defendant and questioned
him regarding the report of gunshots heard in the area. Defendant denied shooting the
firearm. Riboli determined defendant was under the influence of a controlled substance
based on defendant’s demeanor and the performance of field sobriety tests. He was
placed under arrest. During a pat search, a live .223-caliber round was found in
defendant’s left pants pocket. Defendant’s girlfriend told deputies she believed there was
a shotgun in the residence. Upon a search of the apartment, a loaded Remington
Windmaster shotgun was found under a toddler’s bed in the master bedroom. The bullets
in the shotgun matched the expended shell found outside.
       On February 6, 2013, defendant was charged by felony complaint in case
No. SCUKCRCR1371236 with (1) possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1)), and (2) possession of ammunition by a felon (Pen. Code, § 30305,
subd. (a)(1)). On April 24, 2013, defendant waived his constitutional rights and pled no
contest to possession of a firearm by a felon. The court dismissed the other count,
continued the conditions of his bail, and ordered him to return to court for sentencing on
June 7, 2013.
       On May 17, 2013, just before midnight, a sheriff’s deputy on foot patrol stopped a
vehicle being driven by defendant in a parking lot. Approximately four grams of a
substance that later tested positive for methamphetamine were found on the driver’s side
floorboard of the vehicle. Defendant was arrested in case No. SCUKCRCR1372382,


       1
         Since the present appeal is taken from the sentence and other matters arising after
the pleas, we need only concisely recite the facts pertinent to the underlying convictions
as necessary to our limited review on appeal. The facts are taken from the probation
report in case No. SCUKCRCR1371236 and the preliminary hearing in case
No. SCUKCRCR1372382.


                                             2
and charged by information with transportation of a controlled substance (Health & Saf.
Code, § 11379, subd. (a)). The information further alleged defendant committed the
offense while released from custody in case No. SCUKCRCR1371236 (Pen. Code,
§ 12022.1), and that he had suffered a prior drug conviction (Health & Saf. Code,
§ 11370.2, subd. (c)).
       On May 31, 2013, the court heard and denied defendant’s Marsden2 motion to
replace his trial counsel. On June 5, 2013, the date set for a preliminary hearing in case
No. SCUKCRCR1372382, the trial court permitted defendant to represent himself on
both matters and was prepared to continue the preliminary hearing for one week. Later at
the same hearing, defendant withdrew his request to represent himself, and indicated he
wished to proceed with his existing counsel from the public defender’s office. The court
rescinded its ruling relieving the public defender of its representation of defendant and
permitting defendant to represent himself. The preliminary hearing went forward on that
day with defendant represented by the public defender’s office.
       On August 8, 2013, defendant waived his constitutional rights, pled guilty to
transportation of a controlled substance in case No. SCUKCRCR1372382 and admitted
the two special allegations in exchange for a suspended sentence of 92 months. As part
of his plea agreement, Defendant executed a Cruz3 waiver whereby he acknowledged that
he could be sentenced to the maximum sentence of eight years eight months in prison
should he fail to return for sentencing. Defendant was released on his own recognizance,
and ordered to return to court for sentencing on September 10, 2013, and to make contact
with the probation department immediately upon his release.
       Defendant did not report to the probation department and failed to appear on
September 10, 2013, whereupon a bench warrant was issued for his arrest. Defendant


       2
           People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
       3
         People v. Cruz (1988) 44 Cal.3d 1247 (Cruz) held that a defendant whose plea
bargain was disapproved by the trial court because he failed to appear for sentencing was
entitled to exercise his right under Penal Code section 1192.5 to withdraw his guilty plea,
absent a knowing and intelligent waiver of that right. (Cruz, at pp. 1250–1254 & fn. 5.)


                                             3
was arrested on September 18, 2013, and remanded into custody. Judgment and
sentencing were continued until October 18, 2013.
       On October 18, 2013, the court denied probation as to both matters. Pursuant to
the Cruz waiver, the trial court sentenced defendant to eight years eight months in prison
calculated as follows: mid-term of three years for transportation of a controlled
substance, plus one-third the mid-term or eight months for possession of a firearm by a
felon, plus two years for the on bail enhancement, plus three years for the drug prior.4
The court awarded defendant 115 actual days plus 115 good time/work time days, for a
total presentence credit of 230 days. In case No. SCUKCRCR1371236, the court
imposed a $280 restitution fine, $280 parole revocation fine, $40 court security fee, and a
$30 conviction assessment. In case No. SCUKCRCR1372382, the court imposed an
$840 restitution fund fine, $840 parole revocation fine, $40 court security fee, and a $30
conviction assessment. Defendant timely filed a notice of appeal from matters arising
after his plea.
                                      DISCUSSION
       We have reviewed the record on appeal. By entering pleas of guilty and no
contest to the charges in issue, and admitting to the special allegations, defendant
admitted the sufficiency of the evidence establishing the crimes and enhancements for
which he was sentenced, and therefore is not entitled to review of any issue that goes to
the question of whether he is guilty or not guilty. (People v. Hunter (2002)
100 Cal.App.4th 37, 42.) Having independently reviewed the entire record we find no
arguable error that would result in a disposition more favorable to defendant.
       Defendant was represented by counsel throughout the proceedings through entry
of his plea and sentencing. We find no support in the record for any claims on appeal of


       4
        The abstract of judgment incorrectly indicates a sentence of three years for the on
bail enhancement and two years for the prior drug conviction. The trial court’s oral
pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
Accordingly, we will remand the matter for correction of the abstract of judgment in that
regard.


                                             4
ineffective assistance of counsel. Defendant was fully advised of the consequences of his
pleas, and the trial court correctly found there was a factual basis for the pleas, and the
pleas were given freely and voluntarily. Defendant made a knowing and intelligent
waiver of his rights under Penal Code section 1192.5.
       We find no meritorious sentencing issues that would require reversal of the
judgment. The fines and fees imposed by the court were appropriate.
       We find no arguable issues that require further briefing and, accordingly, affirm
the judgment.
                                      DISPOSITION
       The trial court is directed to prepare a corrected abstract of judgment to properly
reflect its oral pronouncement imposing a two-year on bail enhancement under Penal
Code section 12022.1 and a three-year enhancement for defendant’s prior drug
conviction, and to forward a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




                                              5
