Fear Not Law Articles: P. v. Beitel

P. v. Beitel

Filed 2/4/10 P. v. Beitel CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

CHRISTOPHER BEITEL,

Defendant and Appellant.

E048024

(Super.Ct.No. FVI900239)

OPINION

APPEAL from the Superior Court of San Bernardino County. Larry W. Allen, Judge. Affirmed.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant, Christopher Beitel, was sentenced to state prison pursuant to a negotiated plea agreement providing for the low term of 16 months in prison. He appeals from his sentence and challenges the validity of his guilty plea.

BACKGROUND

On November 28, 2008, defendant was observed in a Rite Aid drugstore by an employee who recognized him as someone who had committed thefts in the store previously. The employee contacted the store manager who also recognized defendant and walked toward him. Defendant was standing near the front of the store with three boxes of cologne and a pair of socks. The manager told defendant he needed to come back to talk to her. Defendant threw the boxes of cologne at her and left the store with the socks in his possession, and without paying for them. The manager gave a description of defendant to police.

An employee followed defendant until he went to a gas station and this information was relayed to the police. An officer arrived and found defendant in a bathroom at the gas station, with the pair of socks still in his possession. Defendant was subsequently charged with petty theft with a prior theft-related conviction. (Pen. Code^{^[1]}, 666.) It was further alleged that he had a prior felony conviction for which he had served a prison term (prison prior). ( 667.5, subd. (b).)

On February 26, 2009, defendant waived his right to a preliminary hearing and engaged in a plea agreement. In return for his guilty plea to the petty theft with a prior charge, the prosecution agreed to a stipulated low-term sentence of 16 months and dismissal of the prison prior enhancement allegation. At the hearing, defendant informed the court he understood the change of plea form when he signed it and he understood his attorneys explanation of the terms of the agreement.

Following the entry of his plea, defendant waived his right to a probation report and requested immediate sentencing. Pursuant to the plea bargain, probation was denied and defendant was sentenced to prison for the low term of 16 months. Defendant was awarded presentence credits of 135 days (91 actual days served in local custody, plus 44 conduct credits pursuant to section 4019). On March 26, 2009, defendant filed a notice of appeal after a plea of guilty, checking all the boxes so as to indicate he was appealing from the sentence, the denial of a motion pursuant to section 1538.5, and challenging the validity of the plea. His request for a certificate of probable cause was denied.

On April 1, 2009, defendant filed another notice of appeal, again checking all the boxes and requesting a certificate of probable cause which was denied.

DISCUSSION

At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Nevertheless, pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

Preliminarily, we will address the issues indicated in defendants successive notices of appeal. He checked the boxes indicating the appeal challenged the sentence, the denial of a section 1538.5 motion, and the constitutional or jurisdictional validity of the plea. He cannot challenge the sentence on appeal without a certificate of probable cause because the stipulated sentence was an integral part of the plea agreement. (People v. Pannizzon (1996) 13 Cal.4th 68, 79.) He cannot challenge the denial of a section 1538.5 motion because no motion to suppress was filed in the superior court. (People v. Miranda (1987) 44 Cal.3d 57, 80; see also People v. Lilienthal (1978) 22 Cal.3d 891, 896.)

Finally, defendants notice of appeal challenges the validity of the plea on the ground that his attorney refused to demur to the complaint ( 1004), and refused to file a motion to suppress evidence. In his requests for certificate of probable cause, defendant asserts he suffers from a mental disability which prevented him from understanding the attorneys advice. Unfortunately, on this record and without a certificate of probable cause, we cannot reach these issues. Further, the transcript of the plea proceedings shows that the court asked defendant if he understood the change of plea form and if he understood his attorneys explanation. Defendant indicated he did understand and that he did not need additional time. There was no mention of any mental disability at any point in the proceedings. Thus, even if a certificate of probable cause had been issued, there is nothing in the record to support defendants assertion that he did not understand the proceedings or the consequences of his plea due to any mental disability.

As for the alleged ineffective assistance of counsel in failing or refusing to file a demurrer or motion to suppress, there is nothing in the record to show that either of those procedures would have been meritorious, or the reasons counsel decided not to file them. Under the holding of Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674], any challenge to the validity of the plea on this ground would be unsuccessful, even if a certificate of probable cause had issued allowing us to reach the issue.

We have completed our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/McKinster

s/Richli

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^{^[1]} All further statutory references are to the Penal Code unless otherwise indicated.

Description	On November 28, 2008, defendant was observed in a Rite Aid drugstore by an employee who recognized him as someone who had committed thefts in the store previously. The employee contacted the store manager who also recognized defendant and walked toward him. Defendant was standing near the front of the store with three boxes of cologne and a pair of socks. The manager told defendant he needed to come back to talk to her. Defendant threw the boxes of cologne at her and left the store with the socks in his possession, and without paying for them. The manager gave a description of defendant to police. An employee followed defendant until he went to a gas station and this information was relayed to the police. An officer arrived and found defendant in a bathroom at the gas station, with the pair of socks still in his possession. Defendant was subsequently charged with petty theft with a prior theft-related conviction. (Pen. Code[1], 666.) It was further alleged that he had a prior felony conviction for which he had served a prison term (prison prior). ( 667.5, subd. (b).) On February 26, 2009, defendant waived his right to a preliminary hearing and engaged in a plea agreement. In return for his guilty plea to the petty theft with a prior charge, the prosecution agreed to a stipulated low-term sentence of 16 months and dismissal of the prison prior enhancement allegation. At the hearing, defendant informed the court he understood the change of plea form when he signed it and he understood his attorneys explanation of the terms of the agreement.
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