P. v. Francis

Filed 5/12/08 P. v. Francis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stanislaus County. Loretta Begen, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

Appellant, George Edward Francis, was charged in an information filed July 27, 2006, with possession of heroin (Health & Saf. Code,  11350, subd. (a), count one), driving a vehicle under the influence of a drug (Veh. Code,  23152, subd. (a), count two), driving a vehicle with a blood alcohol level of .08 percent or more (Veh. Code,  23152, subd. (b), count three), possession of narcotic paraphernalia (Health & Saf. Code,  11364, count four), and possession of a hypodermic needle and syringe (Bus. & Prof. Code,  4140, count five). Counts two and three alleged an enhancement that Francis was driving over the speed limit on a freeway (Veh. Code,  23582). The information alleged three prior serious felony convictions within the meaning of the three strikes law (Pen. Code, 667, subd. (d))^[1]and five prior prison term enhancements ( 667.5, subd. (b)).

On May 30, 2007, Francis entered into a plea agreement in which he would admit count one and one prior serious felony conviction. Francis would receive the upper term of three years on count one and his sentence would be doubled pursuant to the three strikes law.^[2] The court expressly informed Francis that he had the right to have a jury decide whether aggravating factors exist to justify an upper term sentence. Francis told the court he was having trouble because he thought he could beat all three strikes on appeal because they were dismissed.^[3] The court explained to Francis that even though the cases involving the prior serious felony allegations had been dismissed after he successfully completed CRC, they still counted as strikes against him.

Francis told the judge he did not need to discuss the matter any further with his attorney. The court explained that Francis would not be able to appeal from his six-year sentence. The court advised Francis of, and Francis waived, his constitutional rights pursuant to Boykin/Tahl.^[4] Francis was advised by the court, and expressly waived, his right to a jury trial on any aggravating circumstances the court would use to justify an aggravated sentence. The court advised Francis of the consequences of his plea.

Francis waived his right to a preliminary hearing and his counsel stipulated there was a factual basis for the plea based on the highway patrol officers report. The parties further agreed that Francis possessed a useable amount of heroin. Francis pled no contest to count one and admitted a prior serious felony conviction in August 2001 for robbery.^[5] The court granted the prosecutors motion to dismiss all of the remaining allegations, enhancements, and cases.^[6]

Franciss appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Francis was advised he could file his own brief with this court. By letter dated December 24, 2007, we invited Francis to submit additional briefing. Francis replied with a letter asserting that three of his prior serious felony convictions were based on cases that had been dismissed.

FACTS

There are no documents in the record setting forth the underlying facts of this case. No probation report was submitted. The trial court referred to the dismissal of the prior serious felony convictions alleged in the information. In his letter to this court, Francis submitted docket sheets from case No. 238823 and case No. 238736 indicating these two actions were dismissed pursuant to Welfare and Institutions Code section 3201 on April 27, 2004.^[7] Case No. 238736 is the robbery conviction that Francis admitted as a prior serious felony allegation. For purposes of our analysis, we will assume that all three prior serious felony convictions were dismissed after Francis successfully completed CRC.

DISCUSSION

We initially note that Francis failed to obtain a certificate of probable cause from the trial courts initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

A guilty plea is, for most purposes, the legal equivalent of a jurys guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)

Furthermore, Franciss plea was to a stipulated term. As long as the trial court has fundamental jurisdiction, the plea agreement is still enforceable and an appellant should not be permitted to trifle with the courts in order to obtain a better bargain.^[8] (People v. Hester (2000) 22 Cal.4th 290, 295.) Francis was promised, and received, a stipulated term of six years.

Francis contends that the dismissal of three prior convictions pursuant to the Welfare and Institutions Code means they cannot be used as convictions under the three strikes law. Francis is incorrect. Under section 1203.4, subdivision (a), a prior conviction that has been dismissed can still be used under statutes that add punishment for recidivists. (People v. Laino (2004) 32 Cal.4th 878, 885-888; People v. Kirk (2006) 141 Cal.App.4th 715, 722; also see Welf. & Inst. Code  3200, 3201 & 3053.) Franciss prior conviction for robbery in 2001 can increase his punishment even though the trial court dismissed that action in 2004 after Francis successfully completed his term at CRC. Finally, because of his recidivism, the trial court did not abuse its sentencing discretion in applying an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 818-820.)

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists. We observed, however, an error in the abstract of judgment. Francis was sentenced pursuant to the two strikes provision of the three strikes law. The abstract correctly indicates that Francis received an upper term sentence which was doubled to six years. Line 4 in the abstract does not have a check mark indicating that Francis was sentenced pursuant to the two strikes provisions of sections 667 and 1170.12. This is a clerical error, not attributable to the exercise of judicial function, which can be corrected at any time including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; also see People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474.)

DISPOSITION

The case is remanded for the clerk to prepare an amended abstract of judgment indicating that Francis was sentenced pursuant to the two strikes provision of the three strikes law. The amended abstract shall be sent to the appropriate authorities. The judgment is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Kane, J.

^[1] Unless otherwise indicated, statutory references are to the Penal Code.

^[2] There was extensive discussion at the hearing concerning Franciss ability to obtain bail pending sentencing and the dismissal of another, unrelated, action.

^[3] At the very beginning of the change of plea hearing, the trial court noted Francis had completed the California Rehabilitation Center (CRC) and had these cases dismissed.

^[4] The form set forth appellants rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).

^[5] According to the information, the August 2001 robbery was in Stanislaus County Superior Court case No. 238736.

^[6] Cases ending in the numbers 855 and 661 were dismissed. There is no other information in the record concerning these two cases.

^[7] There is no docket sheet for a robbery conviction in 2002, which is case No. MF023510A.

^[8] We note that the trial court obtained an express waiver from Francis concerning his right to have a jury make findings concerning any aggravating sentencing factors. We therefore find Cunningham v. California (2007) 549 U.S. 270 and People v. French (2008) 43 Cal.4th 36 factually inapposite to the instant action.