P. v. Armstrong

Filed 8/26/08 P. v. Armstrong CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On May 7, 2007, appellant, Dwight Deville Armstrong, pled no contest to second degree burglary (Pen. Code, 459)^[1]and attempted grand theft ( 664/487, subd. (a)) and admitted two serious felony enhancements ( 667, subd. (a)) and allegations that he had two prior convictions within the meaning of the three strikes law ( 667, subds. (b)-(i)). In exchange for his plea, the court agreed to impose a stipulated sentence of 14 years 8 months.

On August 20, 2007, the court struck one of Armstrongs strike convictions and imposed the indicated sentence of 14 years 8 months, the middle term of 2 years on his burglary conviction, doubled to 4 years because of Armstrongs strike conviction, a 4-month term on his attempted grand theft conviction, doubled to 8 months because of the strike conviction, and two 5-year serious felony enhancements.

On appeal, Armstrong contends his sentence violates section 654s prohibition against multiple punishment. We will affirm.

FACTS

On May 27, 2006, Seta Madoyan was working in the front and her husband, Vartan Madoyan,^[2]in the back of their jewelry store in Fresno when Armstrong appeared at the door. Seta activated the electronic mechanism unlocking the door and allowing Armstrong in. Seta called Vartan to the front because she felt unsafe with Armstrong there.

Armstrong asked to look at a diamond studded cross worth $13,000. While Seta was showing Armstrong the cross, the mailman came to the door and was buzzed in. Seta took the cross out of the display case. As she extended her hand with the cross in it, Armstrong grabbed the cross and attempted to run out of the store but was unable to because the door was locked. Vartan began wrestling with Armstrong and both of them fell to the ground with Armstrong demanding they open the door and Vartan demanding Armstrong return the cross. After a short struggle, Armstrong allowed Vartan to get the cross. Armstrong then got up and kicked the door causing it to open and prompting him to attempt to retake the cross away from Vartan. As the two men struggled, the mailman joined the fracas. Armstrong again opened the door by kicking it and this time he ran away.

On May 7, 2007, Armstrong entered his plea in this matter.

On September 6, 2007, Armstrong filed a timely notice of appeal. On that date, the court denied his request for a certificate of probable cause.

DISCUSSION

Section 654, subdivision (a), provides, in pertinent part:

An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.

Armstrong contends he committed his attempted grand theft offense incidental to his commission of the burglary offense. Thus, according to Armstrong, his sentence violates section 654s proscription against multiple punishment. We will reject this contention.

Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.] [Citation.] [] In determining whether an appeal is cognizable without a certificate of probable cause, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. [Citation.] [Citation.] If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause. [Citation.] [Citation.] (People v. Oglesby (2008) 158 Cal.App.4th 818, 824.)

In People v. Shelton (2006) 37 Cal.4th 759 the Supreme Court held that a defendants section 654 challenge to a lid sentence imposed pursuant to a plea bargain, amounted to a challenge to the plea itself, thus requiring the defendant to obtain a certificate of probable cause. In so holding the court stated:

Because the plea agreement was based on a mutual understanding . . . that the court had authority to impose the lid sentence, defendants contention that the lid sentence violated the multiple punishment prohibition of . . . section 654 was in substance a challenge to the plea's validity and thus required a certificate of probable cause, which defendant failed to secure. (People v. Shelton, supra, 37 Cal.4th at p. 769.)

Applying these principles to the instant case we conclude the plea agreement here was based on a mutual understanding the court had authority to impose the stipulated sentence and that Armstrongs section 654 challenge to his sentence is a challenge to his pleas validity. Thus, in accord with Shelton, we further conclude that Armstrongs contention is not cognizable on appeal because he did not obtain a certificate of probable cause.

However, even if this contention were properly before us, we would reject it. California Rules of Court, rule 4.412(b) (hereafter rule 4.412(b)) provides:

By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record. (Italics added.)

At the change of plea proceedings, Armstrong did not reserve the right to argue that part of his sentence violated section 654. Accordingly, we conclude that rule 4.412(b) bars his claim that his sentence violates section 654. (Accord, People v. Hester (2000) 22 Cal.4th 290, 294- 295.)

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^[1] All further statutory references are to the Penal Code.

^[2] In order too avoid confusion, we refer to the Madoyans by their first name.