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P. v. Childers

P. v. Childers
07/31/06

P. v. Childers




Filed 7/27/06 P. v. Childers CA3



NOT TO BE PUBLISHED





California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


THIRD APPELLATE DISTRICT


(San Joaquin)


----








THE PEOPLE,


Plaintiff and Respondent,


v.


JOHN WESLEY CHILDERS,


Defendant and Appellant.



C051015


Super.Ct.No. SF095352A





After shoplifting about $100 worth of merchandise from a department store, defendant John Wesley Childers pled no contest to petty theft with a prior (Pen. Code, §§ 484, 666 -- further section references are to this code), and admitted he had suffered a prior serious felony conviction (§§ 667, subd. (d), 1170.12, subd. (b)). Pursuant to the stipulation of the parties, he was sentenced to the lower term of 16 months in prison, which was doubled as a result of the prior serious felony conviction. Defendant requested a certificate of probable cause on the ground that trial counsel was ineffective for failing to present a defense premised on defendant's mental disability. The court denied the request.


Counsel we appointed to represent defendant on appeal has submitted a brief that states the factual and procedural history of the action but finds no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified that he could file a supplemental brief within 30 days of the filing of the opening brief. Defendant filed no brief before or after that deadline. We have undertaken an examination of the entire record and find no arguable issue that would result in a judgment more favorable to defendant.


The failure to obtain a certificate of probable cause precludes any appellate attack on the validity of the plea. (In re Chavez (2003) 30 Cal.4th 643, 649-651.) Therefore, we dismiss that portion of the appeal which raises issues affecting the validity of the plea. In addition, since the sentence was stipulated, defendant did not reserve the right to challenge a sentence not exceeding the maximum, the court imposed the stipulated sentence, and defendant did not obtain a certificate of probable cause. We also dismiss that portion of the appeal that purports to challenge the sentence length. (People v. Shelton (2006) 37 Cal.4th 759, 766.)


The trial court failed to include the mandatory $20 court security fee in the judgment. (§ 1465.8, subd. (a)(1); People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [mandatory fee properly imposed on appeal]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1521-1522.) We will direct its inclusion in the judgment.


DISPOSITION


The judgment is modified to include a court security fee of $20. (§ 1465.8, subd. (a)), which shall be deposited in a special account in the county treasury and transmitted therefrom monthly to the controller for deposit in the trial court trust fund. (§ 1465.8, subd. (d).) As modified, the judgment is affirmed.


The trial court is directed to issue an amended abstract of judgment that includes the court security fee and to forward a certified copy thereof to the Secretary of the Department of Corrections and Rehabilitation. (Gov. Code, § 12838.7, subd. (a).)


MORRISON , Acting P.J.


We concur:


ROBIE , J.


BUTZ , J.


Publication courtesy of San Diego free legal advice.


Analysis and review provided by Santee Real Estate Attorney.





Description A decision as to a no contest to petty theft with a prior and a prior serious felony conviction.
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