P. v. Heckman
Filed 4/10/13 P. v. Heckman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. GARY DEAN HECKMAN, Defendant and Appellant. | E056918 (Super.Ct.No. FVI1201025) OPINION |
APPEAL
from the Superior Court
of
County. John P. Vander
Feer, Judge. Affirmed.
Robert
V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Gary Dean Heckman pleaded no contest pursuant to a plea agreement
to one felony count of possession of a
controlled substance (hydrocodone) in violation of Health and Safety Code
section 11350, subdivision (a).
Defendant requested immediate sentencing, and the trial court granted
probation on specified terms and conditions.
Defendant filed a notice of appeal, contending that the
of the drugs was unlawful. He requested
and was denied a certificate of probable cause.
We affirm the judgment.
FACTS AND
PROCEDURAL HISTORY
Police
officers were executing a search warrant at a residence. Defendant rented a room in the residence
where the search warrant was being executed.
The officers conducting the search removed defendant from his room,
living room. The officers stated that
they intended to search defendant’s room, and asked if there was anything in
the room that might injure them.
Defendant said that he had some needles in a dresser drawer. The officers found the needles and some other
items. One of the officers told
defendant that, to speed up the search, it would help if he would indicate the
location of any other illegal items.
Defendant said that he had some hydrocodone and Vicodin pills in his
room. The officers recovered these
items.
Defendant
was charged by a felony complaint with one count of violation of Health and
Safety Code section 11350, subdivision (a), for possession of hydrocodone. Defendant was arraigned on the complaint and
he pleaded not guilty. The matter was
set for a preliminary hearing.
At
a conference before the preliminary
hearing, defendant agreed to change his plea. Defendant agreed to plead no contest to the
charge, in exchange for admission to drug court probation under Proposition
36. Defendant would receive credit for
11 days of actual custody, plus 11 days of presentence conduct credit, for 22
total days of custody credit. The court
imposed various terms and conditions of probation, including a term that
defendant serve 11 days in the county jail, with credit for time served; he was
ordered released upon pronouncement of judgment.
A
month after the plea, in July of 2012, defendant requested and received a
modification of the terms of probation, extending the time to pay the fines
imposed by his sentence.
Defendant
filed a notice of appeal on August 8, 2012, indicating that the
appeal was based on an issue requiring a certificate of probable cause.
grounds that he asserted the search warrant was illegal, and that he had only
agreed to a plea bargain because he had been promised he would be released from
custody on the day of the plea. The
trial court denied defendant’s application for a certificate of probable cause.
This court
appointed counsel to represent
defendant on appeal. Counsel has filed a
brief under the authority of People v.
Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting
forth a statement of the case and a number of potential issues, but has raised
no substantive argument.
ANALYSIS
When
counsel has filed a brief raising no specific issues, this court must conduct a
review of the entire record to determine whether the record reveals any issues
that would result in reversal or modification of the judgment, if the issue
were resolved in the appellant’s favor.
(People v. Wende,
case. Defendant has also been provided
the opportunity to file a personal supplemental brief, which he has not
done. Under the mandate of
we have conducted an independent review of the record and find no arguable
issues.
The
potential issues identified in appellate counsel’s brief are:
1. Was the plea waiver, including the waiver of
defendant’s trial rights, valid?
2. Is the plea waiver issue appealable without
the issuance of a certificate of probable cause?
3. Were the terms and conditions of probation,
including the fines and fees, valid?
4. Is the issue of probation terms cognizable on
appeal without an objection in the trial court?
5. Were defendant’s sentencing credits properly
calculated?
6. Was the search and seizure described in the
police report valid?
7. Can a search and seizure issue be raised on
appeal in the absence of a motion to suppress in the trial court?
8. Are any issues cognizable on appeal in light
of the “inoperative†notation on the notice of appeal?
A
complete review of the record shows:
1. The trial court fully and fairly advised
defendant of his trial rights, and established a factual basis for the plea;
the waiver was valid. (
435.)
2. In order to appeal after a conviction by plea
of guilty or nolo contendere, a defendant must obtain a certificate of probable
cause from the trial court. (Pen. Code,
§ 1237.5.) The issues cognizable
are limited to issues based on “reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings†resulting in the
plea. (Ibid.) The issuance of a
certificate of probable cause does not expand the grounds upon which an appeal
may be taken, but relates only to the manner of perfecting an appeal from a
judgment after a guilty plea. (
1353, 1364.) Without a certificate of
probable cause, any issues going to the validity of the plea are not cognizable
on appeal. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.)
3. The terms and conditions of probation are
valid. For example, the term requiring
defendant not to associate with users of illegal drugs expressly requires that
defendant have knowledge that they are users of illegal drugs, and also makes
an express exception for participants in defendant’s recovery program.
4. Whether or not an objection would be
required, our review establishes no objectionable terms of probation.
5. Defendant received the most lenient
calculation of presentence custody credits.
He received one-for-one credit of 11 days actual service plus a full 11
days of conduct credit. He committed his
crime after October 1, 2011, and was entitled to the new credit earning
rate. (Pen. Code, § 4019.)
6. The police report does not disclose any basis
upon which to challenge the validity of the warrant or search.
7. Appellate review of the
the failure to raise it below. (See
980 [constitutional claims are not reviewable on appeal when not presented to
the trial court; “ ‘[a] party cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct’ â€].)
8. The “inoperative†notation on the notice of
appeal does not present any obstacle to the appeal. The most plausible interpretation is that the
“inoperative†notation refers to the initial “filed†stamp of August 8, 2012,
and the handwritten and stamped “received†notations of the same date. The document bears an unaltered “filed†stamp
of August 10, 2012, which would have superseded the earlier notations. However, the record discloses no arguable
issues.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] The notice of appeal contains several
additional markings. The notice was
originally stamped as “filed†on August 8, 2012, in the box on the upper right
hand side of the form. The “filedâ€
designation was then lined through, and a handwritten and initialed designation
of “received†was added immediately above the stamping. In the lower right side of the form, a
“received†stamp was dated August 8, 2012.
Above the August 8, 2012 markings, in the upper right hand corner,
another handwritten notation was made:
“Inoperative.†The notice
contains a second “filed†stamp, with a date of August 10, 2012, to the left of
the original stamping box.
