P. v. Fuller
Filed 7/1/13 P. v. Fuller CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
PATRICK FULLER et al.,
Defendants and Appellants.
B244731
(Los Angeles
County
Super. Ct.
Nos. TA122594, TA120194)
THE COURT:
Defendants
Patrick Fuller (Fuller) and Christopher Session (Session) appeal following
their pleas of “no contest†pursuant to a plea bargain. Fuller pleaded “no contest†to one count of
violation of Penal Code section 136.1, subdivision (a)(2).
for the benefit of, at the direction of, and in association with a
186.22, subdivision (b)(1)(B). He
admitted a five-year prior conviction allegation (§ 667, subd. (a)) and a
one-year prior conviction allegation (§ 667.5, subd. (b)) for a total of 15
years in state prison. Session pleaded
“no contest†to the same charges and allegations and additionally to one count
of exhibiting a concealable firearm in public in violation of section 417,
subdivision (a)(2), a misdemeanor. He
admitted the allegation that the offense occurred in a public place and the
firearm was a pistol. Session’s sentence
was also 15 years in state prison. The sentences consisted of four years each
(the midterm of two years doubled because of the strike priors) for attempting
to dissuade a witness and consecutive terms for each defendant of five years
for the gang allegations, five years for one of the prior serious felony
allegations, and one year for one of the prior prison term allegations. The trial court also imposed a concurrent
six-month term on Session for his misdemeanor offense.
Fuller
filed a notice of appeal but did not file a request for a
sentence or other matters occurring after the plea that did not affect the
validity of the plea. Session indicated
that his appeal was based on the sentence or other matters, the denial of a
motion to suppress evidence,
name="_ftnref3" title="">
and on a challenge to the validity of the plea. His request for a certificate of probable
cause was denied.
We appointed
counsel to represent defendants on
this appeal. After examination of the
record, counsel filed “Opening Briefs†acknowledging that they had been unable
to find any arguable issues. On February 20, 2013, we advised Fuller
and Session that they had 30 days within which to personally submit any
contentions or issues that they wished us to consider. No subsequent response has been received,
although Session wrote a letter, filed February
14, 2013, in which he alleged ineffective assistance of counsel in
connection with his plea.
The
evidence presented at defendants’ preliminary hearing showed that Brian M. was
riding his bicycle when he heard someone shouting at him. He stopped and saw an angry-looking man,
later identified as Session, approaching him.
A woman appeared, and Session told her to get his “stuff.†She reappeared with a gun that had a banana
clip and gave it to Session. Brian
approached Session because he thought Session was calling him for a
reason. Session then gave the gun back
to the woman. Session told Brian,
“Somebody stole that bike from me.â€
Brian protested that it was his cousin’s bike, but Session told him to
get off the bike and to go and get whoever stole it. Session took the bicycle to the house from
which the woman had emerged. Brian told
some family members what had happened, but he did not tell them about the
gun. Brian told the police about the
gun, drew a picture of it, and identified a similar gun in a photograph. The police identified the gun as an AK-47.
Brian’s
uncle and his aunt, Letia Merriweather, drove to the location where the bicycle
was taken. Brian rode there with his
grandmother in a second car. Session and
two other men were there. Merriweather
asked Session for the bicycle. Session
kept saying “It’s nothing.†He stood up
and approached the car in which Merriweather was riding. At that point, Merriweather saw Session pull
a weapon from his clothing. It was a gun
with an extended clip. She and her companions
drove away and called 911.
When police
officers arrived, Session ran to the rear of the residence but then returned
with his hands up. Police found a
Beretta pistol inside a trash can in the rear yard. There was a live round in the chamber and a
full magazine with 30 rounds. Fuller and
another male were briefly detained.
It was
established that calls were subsequently made on a cell phone from a monitored
jail cell occupied solely by Session. He
said, “They got me for robbery.†He also
told a male that he needed to contact the people “on 118th and Mainâ€
and talk to them regarding the case. The
male stated, “I told Linda to call the girl to tell the people not to go to
court.†This caller was called “Pat Ratâ€
and was identified as Fuller. Fuller
also stated he had gone to the area of 118th Street
and Main Street to look for
the people but had not found them.
Session repeatedly mentioned, “11-8†and “East Coast†during the calls.
A gang
expert testified that he was familiar with the 118 East Coast Crips. He knew Session as a proud member of the
gang. He knew Fuller to be a member of
the gang. He believed the robbery and
attempted witness dissuasion were committed for the benefit of the gang.
The record
shows that, at the taking of the plea, Session acknowledged that he faced a
term of 21 years solely on the counts to which he agreed to plead. Fuller acknowledged that he faced a term of
48 years to life solely on the one count to which he agreed to plead. Both Session and Fuller confirmed to the
court that they wished to accept the People’s offer. The court informed the defendants that their
attorneys had attempted to get a lower sentence for each of them. The People had rejected Session’s
counteroffer of 13 years. The court told
Session it would not have been able to give him anything less than a life
sentence due to the gang allegation. The
court told Fuller it could not give him less than 20 years because of the four
five-year priors. The defendants had no
questions for the court. After being
advised of all the charges, defendants stated they understood them. They confirmed their acceptance of the
details of the plea bargain. Defendants
were advised of their constitutional rights and the consequences of the pleas.
Section
1237.5 provides, in pertinent part, “No appeal shall be taken by the defendant
from a judgment of conviction upon a plea of guilty or nolo contendere, . . .
except where both of the following are met:
[¶] (a) The defendant has filed
with the trial court a written statement, executed under oath or penalty of
perjury showing reasonable constitutional, jurisdictional, or other grounds
going to the legality of the proceedings.
[¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal . . .
.†California Rules of Court, rule
8.304(b) sets forth both the section 1237.5 rule and its exceptions. If the trial court denies a certificate of
probable cause, the appeal is inoperative unless the appeal is based on the
denial of a motion to suppress evidence or on grounds that arose after entry of
the plea and do not affect the plea’s validity.
Moreover, those issues
that relate to a defendant’s sentencing in accordance with the plea bargain to
which he agreed may not be raised on appeal.
In People v. Panizzon (1996)
13 Cal.4th 68, 89, the Supreme Court held that where a defendant is sentenced
in accordance with the terms of a plea bargain that provides for a particular
sentence, and then attempts to challenge that sentence on appeal, he must
secure a certificate of probable cause. The court explained that since the defendant
is “in fact challenging the very sentence to which he agreed as part of the
plea,†the challenge “attacks an integral part of the plea [and] is, in
substance, a challenge to the validity of the plea, which requires compliance
with the probable cause certificate requirements of section 1237.5 and [former]
rule 31(d).†(Id. at p. 73; accord People
v. Cuevas (2008) 44 Cal.4th 374, 382-384.)
In People v. Mendez (1999) 19
Cal.4th 1084, the California Supreme Court interpreted former rule 31(d), which
corresponds to current rule 8.304(b)(1)-(3), and held that section 1237.5 and
its implementing rules of court “should be applied in a strict manner.†(People
v. Mendez, supra, at p. 1098.)
The record
clearly shows that the parties expressly agreed to imposition of a
15-year sentence in each defendant’s case.
Defendants were facing higher sentences merely on the charges to which
they pleaded. Numerous counts and
allegations were dismissed.
name="_ftnref4" title="">[3]
which they bargained, any challenge to the sentences constitutes a challenge to
the validity of the plea. (
In the absence of certificates of probable cause, we must dismiss the
appeals.
We have
examined the entire record and are satisfied that defendants’ attorneys have
fully complied with their responsibilities and that no
v. Wende (1979) 25 Cal.3d 436, 441.)
The appeals
are dismissed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
name="_ftn1" title="">* BOREN, P.J., Ashmann-Gerst,
J., Chavez, J.
name="_ftn2" title="">[1]
All further references to statutes
are to the Penal Code unless stated otherwise.
