Filed 1/30/15 P. v. Contreras CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                     F067905

                   v.                                                   (Super. Ct. No. VCF273928B)

RICHARD GALINDO CONTRERAS,                                                           OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. H.N.
Papadakis, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.


                                                        -ooOoo-



*        Before Levy, Acting P.J., Cornell, J., and Detjen, J.
       Appellant, Richard Galindo Contreras, pled guilty in case No. VCF273928B to
possession for sale of a controlled substance (Health & Saf. Code, § 11351)1 and
possession of drug paraphernalia (§ 11364.1, subd. (a)) and admitted six prior prison term
enhancements (Pen. Code, § 667.5, subd. (b)) and allegations that he had a prior
conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).
In case No. PRCS000378 Contreras admitted that he violated the terms of his Post-
Release Community Supervision. Following independent review of the record pursuant
to People v. Wende (1979) 25 Cal.3d 436, we affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       On November 8, 2011, Contreras was released from Pelican Bay State Prison on
Post-Release Community Supervision.
       On February 17, 2012, Contreras failed to report to probation as instructed.
       On February 21, 2012, Contreras provided a urine sample that tested positive for
opiates.
       On September 28, 2012, at approximately 11:47 a.m., officers from the Visalia
Police Department and the TARGET drug task force went to Contreras’s residence to
serve a search warrant. After knocking on the door and receiving no answer the officers
forced entry into the house and in the front room encountered Contreras’s father, who
was confined to a wheelchair. The officers searched the house and detained Contreras
and codefendant, Willie Champion, in a bathroom.
       During a visual inspection of Contreras’s bedroom officers found two syringes,
each containing a heroin solution that was ready to be injected. When asked if there were
any other illegal items in the bedroom Contreras stated that everything was in a green


1      All further statutory references are to the Health and Safety Code unless otherwise
indicated.


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canvas bag. A search of the bag uncovered numerous bindles of heroin weighing
approximately 5.9 grams with packaging, numerous used syringes, two digital scales, and
a metal spoon. The officers also found a single plastic baggie containing heroin on the
floor (case No. VCF273928B).
       On December 5, 2012, in case No. PRCS000378 a Petition of Revocation of
Community Service was filed alleging that Contreras violated the conditions of his
community release.
       On December 24, 2012, the district attorney filed an information charging
Contreras with possession for sale of heroin (count 1), possession of heroin
(count 2/§ 11350, subd. (a)), possession of drug paraphernalia (count 3), six prior prison
term enhancements, and an allegation that Contreras had a prior conviction within the
meaning of the three strikes law.
       On March 1, 2013, Contreras entered his plea in case No. VCF273928B, as
previously noted, in exchange for the dismissal of count 2 and a stipulated term of 10
years. Contreras also admitted that he violated the terms of his release in case
No. PRCS000378.
       On or about May 7, 2013, Contreras filed a motion to withdraw his plea and for
appointment of counsel.
       On May 16, 2013, the court appointed substitute counsel for Contreras to review
his case and determine whether to file a motion to withdraw plea on Contreras’s behalf.
       On June 26, 2013, the court denied Contreras’s motion to withdraw plea which
substitute counsel presented orally. The court then sentenced Contreras in case
No. VCF273928B to an aggregate 10-year prison term: the mitigated term of two years
on his possession for sale of heroin conviction, doubled to four years because of
Contreras’s strike conviction, six one-year prior prison term enhancements, no additional



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time on his conviction for possession of drug paraphernalia, and a concurrent 180 days
for violating the terms of his release in case No. PRCS000378.
       On August 26, 2013, Contreras filed a notice of appeal. Also on that date, the
court denied his request for a certificate of probable cause.
       Contreras’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document filed on
December 19, 2013, Contreras contends he was denied the effective assistance of counsel
during plea bargaining because defense counsel coerced him into taking a plea bargain by
telling Contreras: (1) he did not have time to take his case to trial; (2) Contreras would
receive a sentence of 16 years if he did; and (3) that Contreras would receive 50 percent
conduct credit. Contreras also contends that his defense counsel was ineffective because
he did not assist him in filing his appeal and in obtaining a certificate of probable cause.
Contreras’s claims, however, are not cognizable on appeal.
       “The purpose of requiring defendants to obtain certificates of probable cause is to
save judicial time and prevent frivolous appeals of matters that were resolved by plea or
admission. [Citations.] Matters occurring before a plea of guilty or no contest that affect
the plea’s validity cannot be raised without a certificate of probable cause. [Citation.]”
(People v. Sem (2014) 229 Cal.App.4th 1176, 1186.)
       Here, Contreras requested a certificate of probable cause from the trial court and it
was denied. Further, his contention that he was not provided the effective assistance of
counsel in entering his plea involves matters that occurred prior to Contreras entering his
plea and go to its validity. Therefore, since Contreras did not obtain a certificate of
probable cause, this contention is not cognizable on appeal. Additionally, his claim that
he was denied the effective assistance of counsel in entering his plea is not cognizable on
appeal for the additional reason that it relies on facts outside the record. (People v.

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Neilson (2007) 154 Cal.App.4th 1529, 1534 [“An appellate court’s review is limited to
consideration of the matters contained in the appellate record”].) Similarly, Contreras’s
contention that defense counsel provided ineffective representation by failing to assist
him in filing an appeal and obtaining a certificate of probable cause is also not cognizable
on appeal because it relies on facts outside the record. (Ibid.)
       Following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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