P. v. Dain
Filed 6/24/08 P. v. Dain CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. YACOB DAWIT DAIN, Defendant and Appellant. | A120621 (Sonoma County Super. Ct. Nos. SCR-515548, SCR-486808) |
Defendant appeals from judgments in two cases following his pleas of no contest in one and a revocation of probation in the other. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel represents that she has advised defendant that he could file a supplemental brief raising any issues he wishes to call to this courts attention. He has not done so.Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On May 25, 2006, defendant entered pleas of no contest to a felony, participation in a criminal street gang (Pen. Code, 186.22, subd. (a)) and to a misdemeanor, assault with force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) in case number SCR-486808. On July 18, defendant withdrew his pleas, but again entered the same pleas to the same charges on July 19, 2006. Imposition of sentence was suspended and defendant was placed on a three-year grant of probation subject to various terms and conditions.
The facts underlying case number SCR-486808 are set forth in the probation officers report filed June 22, 2006. On April 19, 2006, officers were dispatched to Little Caesars Pizza. They found Edgar N. who reported that he was approached by a group of individuals that included the defendant. The defendant asked him if he knew who he was. Defendant subsequently punched Edgar N. while shouting Crip. One of the members of defendants group then pulled out a knife and shanked Edgar N. on the top of his head. Defendant was detained after a short pursuit and was positively identified as being involved in the attack.
On May 14, 2007, a preliminary hearing was held in what appears to be case number SCR-511142.[1] Following this hearing, the court found that there has been a sufficient showing as to all of the allegations in the felony complaint, that theres [been] probable cause to believe they have been . . . committed by this defendant and he will be held to answer. The court also summarily revoked probation in case number 486808. The court then deem[ed] the felony complaint to be the information and defendant entered pleas of not guilty and denied the special allegations and priors.
On July 31, 2007, a pleading was filed that bore the typed titles of Refile of SCR-511142 and Felony Complaint. Handwritten above the title Refile of SCR-511142 was the word Information and a case number of SCR515548. This pleading charged the defendant with the following: felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), count one; carrying a loaded firearm in public (Pen. Code, 12031, subd. (a)(1)), counts two and three; participation in a criminal street gang (Pen. Code, 186.22, subd. (a)), count 4; and delaying or obstructing an officer (Pen. Code, 148, subd. (a)(1)), count 5. Various other allegations were made including street gang enhancements (Pen. Code, 186.22, subd. (b)(1)(A)) and prior felony enhancements (Pen. Code, 667, subd. (a)(1) and 1170.12). For reasons not apparent from the record, the case was set for preliminary hearing on August 13, 2007.
A preliminary hearing was held on August 27, 2007. The court concluded that for the purposes of the preliminary hearing each of the counts and special gang allegations has been demonstrated to the degree necessary, and Mr. Dain will be held to answer. The court again deemed the felony complaint to be the information, and defendant entered pleas of not guilty and denied the special allegations.
The incident that formed the basis for the charges in case number SCR-515548 occurred on May 2, 2007, around 6:30 in the evening. Officer Cutting of the Sonoma County Sheriffs Department approached a picnic table in a park thats frequented by gang members. The defendant was seated at the table. As the officer approached, defendant started to run. The officer gave chase ordering defendant to stop, but he continued to run. During the chase, the officer saw defendant throw a black object into a dumpster. When the officer returned to the dumpster he retrieved a loaded .22-caliber revolver.
A motion to dismiss pursuant the provisions of Penal Code section 995 was filed on August 30, 2007. The motion was heard and denied on September 12, 2007.
On October 10, 2007, pursuant to a negotiated disposition, defendant entered pleas of no contest to counts one, four and five and admitted the special allegation pursuant to Penal Code section 1170.12. The remaining charges and special allegations were dismissed. Under the terms of the negotiated disposition, defendant would be sentenced to the aggravated three-year term on count one that would be doubled to six years pursuant to the prior strike.
At the sentencing hearing on January 25, 2008, counsel indicated that defendant wished to withdraw his plea. Defense counsel indicated that he did not believe that there was legal cause to withdraw the plea. The court heard from defendant and denied his request. The court then imposed sentence in case number 515548 pursuant to the negotiated disposition. In case number SCR-486808, the court reinstated probation, terminated it unsuccessfully and sentenced defendant to a concurrent three-year term. He was awarded total custody credits of 403 days on case SCR-515548 and 365 days on case SCR-486808. This appeal followed.
DISCUSSION
By pleading no contest to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, Penal Code section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant has not obtained a certificate of probable cause.[2] We therefore limit our review to determining the validity of the proceedings held subsequent to the pleas.
We find no arguable search and seizure issues. Appellant did not make a motion to suppress evidence pursuant to Penal Code section 1538.5, and the record does not reveal any meritorious search and seizure issues to be considered.
Defendant was represented at all stages of the proceedings in both cases by counsel.
Prior to entering his pleas he executed change of plea forms and was fully advised by the court of his rights and waived those rights. We find no error in the denial of his request to withdraw his plea. His counsel stated that there were no legal grounds upon which to withdraw his plea and the record fails to establish any legal basis to support the request. Upon review of the record, and particularly the transcript of the negotiated plea, we conclude that appellant was thoroughly and accurately advised by the court and his counsel before entry of the plea, and freely exercised his judgment in entering into the pleas.[3] We find nothing in the record to indicate that defendant lacked competence or understanding to enter the plea.
There are no sentencing errors. The imposition of the upper term of three years was consistent with the negotiated plea, and did not require a further statement of supporting reasons. (People v. Sutton (1980) 113 Cal.App.3d 162, 165166.) Defendant received the term of imprisonment that he agreed to as part of the negotiated disposition.
DISPOSITION
After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.
__________________________________ Swager, J. | |
We concur: __________________________________ Marchiano, P. J. __________________________________ Margulies, J. |
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[1]We note that the record in this case is somewhat confusing. It does not contain a copy of the complaint underlying the May 14, 2007 preliminary hearing and the typed case number on the reporters transcript of the hearing is stricken out and the number 486808 is written in.
[2]The brief submitted on behalf of defendant represents that his application for a certificate of probable cause was denied on April 3, 2008.
[3]A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 16161617.) Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea. (In re Vargas, supra, at p. 1142.)
