Filed 9/6/13 P. v. Pompey CA6
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              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       Section 12021 was repealed effective January 1, 2012, (Stats. 2010, ch. 711, § 4)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


2
       The conspiracy was alleged to have occurred on or about and between August 1,
2008, and the possession of the funds and possession of a firearm on March 18, 2009.
                                              2
notified that no issues were being raised by counsel on appeal and that an independent
review under Wende was being requested.
       On June 17, 2013, we notified defendant of his right to submit written argument
on his own behalf within 30 days. That time has passed and we have not received a
response from defendant.
       Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and
have concluded there is no arguable issue on appeal. Pursuant to People v. Kelly (2006)
40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the
case, the crimes of which the defendant was convicted, and the punishment imposed."
(Id. at p. 110.)
                              Facts and Proceedings Below
       On June 25, 2009, the Santa Clara County District Attorney filed a grand jury
indictment in case number 211412. The indictment charged defendant along with
numerous other defendants with a total of 29 counts relating to a conspiracy to sell
cocaine. Specifically as to defendant he was charged with 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, § 12021, subd. (a)(1), count 27). In the indictment it was alleged that
the narcotics involved in the conspiracy to sell cocaine exceeded 80 kilograms, and 40
kilograms in weight and that defendant was substantially involved in the planning,
direction, execution and financing of the offense, and that defendant had a prior narcotics
conviction.
       According to the grand jury indictment, on March 4, 2009, Jose Vargas-Alvarez
possessed 135 kilograms of cocaine at a location in Southern California. Defendant
admitted that between December 2, 2008 and March 18, 2009, he had several telephone
calls with Vargas-Alvarez concerning purchasing large quantities of cocaine; that on
                                             3
February 25, 2009, Vargas-Alvarez's drug courier delivered 10 kilograms of cocaine to
him; that on March 1, 2009, Vargas-Alvarez's drug courier delivered 13 kilograms of
cocaine to him; and that on March 12, 2009, Vargas-Alvarez's drug courier delivered 20
kilograms of cocaine to him. Further, defendant admitted that on March 18, 2009, he had
$144,001 in illegal drug proceeds and a gun at 36676 Port Fogwood, Newark, California.
       Before defendant entered his pleas and admissions he was advised of and waived
his constitutional rights to a jury trial, to present a defense, to confront the witnesses
against him and his right not to incriminate himself. He was advised of the collateral
consequences of his pleas including immigration consequences and that certain fines and
fees would be imposed. The court informed defendant that his maximum exposure for
the crimes to which he would be entering his pleas and admissions was 34 years eight
months. Defendant acknowledged that he understood. Counsel stipulated to a factual
basis for defendant's pleas "based on the offense reports." Defendant waived his right to
appeal his convictions except if an issue arose with the order for his release to federal
marshals.
       On September 27, 2012, Judge Cena ordered that defendant be released from the
custody of the State of California Department of Corrections, and be turned over to the
United States Federal Marshals pursuant to a federal detainer. It appears that defendant
was sentenced on February 9, 2012, to a 70 month federal prison sentence to be served in
Georgia. The record is silent as to whether defendant is still in the custody of the
California Department of Corrections or is serving his prison time in Georgia.
                                         Conclusion
       Upon our independent review of the record, we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal. The fines and fees imposed
were supported by the law and facts. Defendant received the sentence he was promised.
At all times, defendant was represented by competent counsel.


                                               4
                                 Disposition
     The judgment is affirmed.




                                   _______________________________
                                   ELIA, J.


WE CONCUR:




____________________________
RUSHING, P. J.




____________________________
PREMO, J.




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