P. v. Fuller

Filed 7/14/09 P. v. Fuller 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Following defendants entry of a plea of no contest to attempted second degree commercial burglary (Pen. Code,  664/459) he was sentenced to the lower term of eight months in state prison. His appellate 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.) Defendant was notified of his right to file a supplemental brief, but 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[1]

At 12:15 a.m. on March 17, 2008, Officer Robert Reynolds of the Vallejo Police Department arrived at the Cemmco Machine Shop at 1640 Marine World Parkway in response to a report of banging noises and voices inside an adjacent large commercial warehouse building that contained machine equipment. Officer Reynolds set up a perimeter on the premises with the assistance of other officers. Defendant and another man named Mason were then observed jumping over the back fence of the business, and were taken into custody.

Officer Reynolds checked the warehouse building and discovered that the door knob and lock to the main entrance door had been broken off, and a large pry bar was on the ground nearby. Mason, who is defendants nephew, was interviewed by Officer Reynolds. He admitted that he and defendant arrived together in the parking lot next door in a white pickup truck. Mason also stated that times were tough and he was doing what he needed to do. He declined to further implicate defendant.

Defendant was charged with a single count of attempted second degree commercial burglary (Pen. Code,  664/459). On August 6, 2008, he moved to act as his own counsel (Faretta v. California (1975) 422 U.S. 806). The motion was denied without prejudice on August 26, 2008, on the ground that defendant was not present in court in Solano County he was then incarcerated in Sonoma County on another case (FCR237612). After defendant was transferred to Solano County pursuant to a removal order, he was given a Faretta waiver form on October 28, 2008, in the event he decided to represent himself. Defendant continued to be represented by a deputy conflict public defender at the preliminary hearing on October 15, 2008, and thereafter. We have no record before us that the Faretta motion was pursued by defendant.

On November 3, 2008, following admonitions given by his counsel, defendant entered a negotiated plea of no contest to attempted second degree commercial burglary, in exchange for the promise of a sentence not to exceed the lower term of eight months to be served concurrently with the sentence in the pending Sonoma County case, with full credit for time served. He was also found in violation of probation in the other case; his probation was revoked and reinstated.

Although still represented by counsel, defendant, acting in pro per, filed a motion to set aside his plea on November 10, 2008. Defendant asserted the following grounds in support of the motion: he was denied effective assistance of counsel; he was not informed of the parole consequences of the plea; and, the plea was entered under duress due to lengthy negotiations during which he was forced to wear chains all day.

At the sentencing hearing on November 12, 2008, defendants motion to withdraw his plea was not pursued or mentioned. Defendant was denied probation, sentenced to the lower term of eight months, and granted sentence credits in the total amount of 242 days which was in excess of the sentence. A $200 restitution fine was imposed, along with a $200 parole revocation fine which was stayed pending successful completion of parole. The motion to withdraw the plea was subsequently found moot. The present appeal was filed on December 2, 2008.

DISCUSSION

Penal Code section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such appeal. [Citation.] Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citation.] [] The statutory requirement and its exceptions are embodied in rule 30(b)(4) of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless the notice of appeal states that the appeal is based on: [] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [] (B) grounds that arose after entry of the plea and do not affect the pleas validity.  (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.)[2] Defendant has neither requested nor obtained a certificate of probable cause, so he cannot challenge the validity of the plea or any other matter that preceded entry of the plea.[3] (People v. Cole (2001) 88 Cal.App.4th 850, 868.)

We find no arguable search and seizure issues. Defendant did not make a motion to suppress evidence pursuant to Penal Code section 1538.5, and the record does not reveal any search and seizure issues to be considered. Nothing in the record indicates that the arrest of defendant or the questioning of his nephew and accomplice was unlawful.

There are no sentencing errors. Nothing in the record shows that the trial court improperly considered evidence or imposed an unauthorized sentence. The lower term sentence was in accord with the plea bargain, and was not abuse of discretion. (People v. Stuart (2007) 156 Cal.App.4th 165, 179.) The court was also justified in imposing the parole revocation fine and restitution fine. The section 1202.45 parole revocation fine was properly stayed. No error in the calculation of the total presentence custody credits of 242 days is established.

Appellant was represented by competent counsel throughout the sentencing proceedings.

After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.

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[1] In light of defendants plea, our recitation of the facts pertinent to the offenses will be concise, and will be taken from the preliminary hearing transcript.

[2] The current version of rule 30(b) of the California Rules of Court, is rule 8.304(b) (effective July 1, 2007), which provides (1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior courtwith the notice of appeal required by (a)the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [] (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. [] (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal Inoperative, notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. [] (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [] (B) Grounds that arose after entry of the plea and do not affect the pleas validity. [] (5) If the defendants notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).

[3] For instance, defendant cannot claim that the court acted improperly in response to his motion for co-counsel status before entry of the plea; and that his counsel was inadequate for failing to question witnesses at the preliminary hearing or failing to file a Penal Code section 995 motion to dismiss the information based on lack of sufficient evidence presented at the preliminary hearing, all issues that are mentioned in his notice of appeal.

* Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.