P. v. Holmes

Filed 1/13/10 P. v. Holmes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In two separate criminal actions that have been consolidated, defendant entered a negotiated plea of no contest to unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)), being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), and commission of a felony while released on bail or own recognizance pending final resolution of an earlier felony charge (Pen. Code, 12022.1). The trial court imposed but stayed a total state prison term of four years eight months, and granted defendant three years probation on the condition that he accept placement in the Jericho Project drug treatment program. After defendant admitted the second of two probation violations, his probation was revoked and the state prison term was imposed.

His appellate counsel has not raised any issues and instead has asked this court to undertake 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.) Counsel declares in her affidavit that she notified defendant he could file a supplemental brief raising any issues he wishes to present to this court. No supplemental brief has been received. 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]

Defendant was charged with offenses in case number SCR-541352, including a violation of Vehicle Code section 10851, subdivision (a), based on a detention of a Ford Escort he was driving on July 17, 2008, which was reported stolen. The stereo of the vehicle was missing, the steering column was broken, and a shaved key from a Dodge was found in the ignition. A records check revealed that defendant was on probation and his drivers license had been suspended or revoked.

After defendant was released on bail but the case was still pending, an apartment in which he was temporarily residing was searched pursuant to a warrant on July 30, 2008. Inside the apartment police found a .22-caliber rifle, tools used to force entry into vehicles, a vehicle identification number plate from a stolen car, a shaved key, and a handicap placard from the stolen Ford Escort. Defendant was subsequently charged in case number SCR-542164 with being a felon in possession of a firearm, among other offenses.

On August 11, 2008, defendant entered a negotiated no contest plea in both cases to one count of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) and one count of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), in exchange for dismissal of the remaining charges filed against him in the two cases. He also admitted a charged enhancement that he committed the firearm possession offense while released on bail. On October 8, 2008, the court imposed an aggregate state prison term of four years eight months, but suspended execution of the sentence and granted defendant formal probation for a term of 36 months, on the condition, among others, that he participate in and complete the Jericho Project drug rehabilitation program. Defendant agreed to waive all custody credits while in residential treatment.

Defendants probation was summarily revoked on November 26, 2008, and he subsequently admitted a probation violation for failure to complete the Jericho Project program and leaving without permission. His probation was reinstated and he was returned to the Jericho Project on December 19, 2008, to complete the residential treatment program.

The next day, defendant left the Jericho Project program of his own accord. As part of a negotiated disposition after a new case was filed against defendant for vehicle theft, he admitted the second probation violation on January 29, 2009, for again leaving the drug treatment program and failing to report to his probation officer. His probation was revoked a second time, and the matter was set for sentencing. He subsequently participated in the Starting Point Program alcohol and drug treatment program, and was accepted into the Redwood Gospel Mission residential long-term drug and alcohol recovery program.

At the sentencing hearing on May 28, 2009, in accordance with a mental health evaluation and the recommendation of the probation department the trial imposed on defendant the suspended sentence of four years eight months in state prison. Defendant was also ordered to pay victim restitution in the amount of $120 (Pen. Code,  1202.4), and restitution fines of $200 in both cases (Pen. Code,  1202.45, 1202.4, subd. (b)). He was given a total of 228 days of custody credits.

This appeal was filed on July 6, 2009. Defendant was granted a certificate of probable cause, which was filed with the notice of appeal.

DISCUSSION

 A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon must fully comply with section 1237.5 and rule 8.304(b) of the California Rules of Court, which require that the defendant secure a certificate of probable cause in order to challenge the validity of the plea. (People v. Puente (2008) 165 Cal.App.4th 1143, 1149, citation omitted.)[2] Defendant obtained a certificate of probable cause, so under rule 8.304(b) he is entitled to obtain review of the validity of the plea and plea proceedings in this appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1088.) In addition, we review any postplea claims, including sentencing issues, that do not challenge the validity of the plea. (People v. Cuevas (2008) 44 Cal.4th 374, 379; see also People v. Buttram (2003) 30 Cal.4th 773, 780.)

We find no arguable search and seizure issues. Defendant did not move to suppress evidence in the trial court, and the record does not demonstrate that the search of either his vehicle or residence was unlawful.

Upon review of the record, and particularly the transcript of the negotiated plea, we conclude that defendant was thoroughly and accurately advised by the court and his counsel before entry of the plea, and freely exercised his judgment in entering into the plea.[3] We find nothing in the record to indicate that defendant lacked competence or understanding to enter the plea.

There are no sentencing errors. In imposing sentence, the trial court properly considered evidence in the record, including the information in the probation report, and the argument of counsel. The trial courts refusal to reinstate defendants probation was in accord with the recommendation of the probation report and amply supported by evidence of defendants prior repeated failure to comply with his probation conditions. The imposition of the previously suspended sentence of four years eight months in state prison was consistent with the negotiated plea. The court was justified in imposing the fines and ordering victim restitution. No error in the calculation of presentence custody credits is established.

It appears to us that defendant was represented by competent counsel throughout the proceedings. We realize that defense counsel may have been physically ill and infirmed during the proceedings following the entry of the plea, but nothing suggests that defendant was provided with inadequate representation in any way as a result.

After a full review of the record, we find no arguable issues. We direct the trial court to correct the abstract of judgment as it relates to the enhancement to reflect a finding that defendant violated Penal Code section 12022.1, rather than section 12021.1. As so modified, the judgment is affirmed.

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[1] In light of defendants plea, we will recite the facts pertinent to the underlying offenses with the utmost brevity. We will focus on the facts related to the plea and sentencing proceedings.

[2] Rule 8.304(b) 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 court with 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] A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 16161617.) Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea. (In re Vargas, supra, at p. 1142.)