P. v. Harmon
Filed 8/20/12 P. v.
Harmon CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY LEROY HARMON, SR.,
Defendant and Appellant.
C069819
(Super.
Ct. No. CM035345)
On October 28, 2011, defendant Henry
Leroy Harmon, Sr., was found in possession of 17 .40-caliber rounds. He had a 2004 conviction for
(former Pen. Code, § 12303.3)
name="_ftnref1" title="">[1]
and a 1981 conviction for assault with a deadly weapon (§ 245, former subd.
(b)).
Defendant was
charged with possession of ammunition by a convicted felon (former § 12316,
subd. (b)(1)) along with allegations that he suffered a prior prison term (§
667.5), that his prior conviction for possession of a destructive device was a
serious or violent felony conviction within the meaning of the “three strikes”
law (§ 1170.12), and that his prior assault with a deadly weapon conviction was
a serious or violent felony subjecting him to a
(h)(3)). Defendant entered into a
negotiated plea in which he pleaded no contest to possession of ammunition and
admitted the prior prison term and state prison allegations, with a stipulated
sentence of four years in state prison and dismissal of the strike allegation. In accordance with the plea, the trial court
sentenced defendant to a four-year state prison term, imposed various fines and
fees, and awarded 37 days of presentence credit (19 actual and 18 custody).
Defendant
appeals. He did not obtain a
We appointed
counsel to represent defendant on appeal.
Counsel filed an opening brief that sets forth the facts of the case and
requests this court to review the record and determine whether there are any
arguable issues on appeal. (
436.) Defendant was advised by counsel
of the right to file a supplemental brief
within 30 days of the date of filing of the opening brief.
Defendant filed a
supplemental brief asserting that he was coerced into the plea by trial
counsel, the ammunition in his possession was obtained pursuant to an illegal
search, and his 1981 assault conviction might not be a strike.
Defendant’s
allegation that counsel pressured him into a plea is an attack on the plea
itself, which we cannot consider in the absence of a
conviction suffers from the same defect.
Defendant admitted the prior conviction was a serious felony when he
admitted the state prison allegation, which was in turn integral to the
stipulated sentence of four years in state prison. Therefore, defendant cannot attack the prior
conviction without a certificate of probable cause, because the claim
implicitly attacks the plea. (
668, 678-679.)
Defendant is also
foreclosed from contesting the search on appeal. Section 1538.5, subdivision (m) provides in
relevant part: “A defendant may seek
further review of the validity of a search or seizure on appeal from a
conviction in a criminal case notwithstanding the fact that the judgment of
conviction is predicated upon a plea of guilty.
Review on appeal may be obtained by the defendant provided that at some
stage of the proceedings prior to conviction he or she has moved for the return
of property or the suppression of the evidence.” Since defendant did not file a suppression
motion in the trial court, we cannot consider his search and seizure claim on
appeal.
Having undertaken
an examination of the entire record, we find no arguable error that would
result in a disposition more favorable to defendant.
DISPOSITION
The judgment is
affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated statutory provisions to follow
are to the Penal Code.
