P. v. Latham
Filed 11/4/08 P. v. Latham CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. TERRY LATHAM, Defendant and Appellant. | B205289 (Los Angeles County Super. Ct. No. BA325252) |
APPEAL of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Affirmed.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff or Respondent.
_________________________________
Following his arrest for a parole violation, Terry Latham was transported to the police station. Officers found cocaine in the patrol car where Latham had been sitting.
Latham was charged by information with possession of cocaine (Health & Saf. Code, 11350, subd. (a)). It was specially alleged Latham had suffered one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1), and the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served one prior prison term for a felony (Pen. Code, 667.5, subd. (b)).
Appearing with appointed counsel, Latham entered a negotiated plea of no contest to cocaine possession. The plea agreement provided Latham would waive his right to presentence custody credit in return for the dismissal of the prior strike allegation and a state prison sentence of two years.
The record of the plea hearing established Latham was advised of and waived his constitutional rights and was advised of and acknowledged he understood the consequences of his plea. Counsel stipulated to a factual basis for the plea. The trial court found Latham had knowingly, voluntarily and intelligently waived his constitutional rights and entered his no contest plea. In accordance with the plea agreement, Latham was sentenced to the middle term of two years in state prison. The court ordered Latham to pay a $20 security fee and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45.
Latham filed a timely notice of appeal in which he checked the preprinted box indicating, This appeal is based on the denial of a motion to suppress evidence under Penal Code section 1538.5. As grounds for seeking a certificate of probable cause, Latham claimed his defense counsel was constitutionally ineffective for ignoring Lathams repeated requests to file a motion to suppress evidence. Lathams request for a certificate of probable cause was denied. We appointed counsel to represent him on appeal.
After examination of the record counsel filed an Opening Brief in which no issues were raised. In her brief counsel asked us to conduct an independent review pursuant to People v. Kelly (2006) 40 Cal.4th 106 and People v. Wende (1979) 25 Cal.3d 436, 441 to determine if the record reveals any issue that might result in reversal or modification of the judgment. On July 21, 2008 we advised Latham he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
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, may not obtain review of so-called certificate issues, that is questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 of the Penal Code and the first paragraph of rule 31(d) [now rule 8.304(b)] of the California Rules of Court -- which require him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1088, fns. omitted.)
Having failed to obtain a certificate of probable cause, Latham may only seek review on appeal of so-called noncertificate issues -- postplea questions not challenging his pleas validity and/or questions involving a search or seizure whose lawfulness was contested pursuant to [Penal Code] section 1538.5. (People v. Mendez, supra, 19 Cal.4th at p. 1088; see Cal. Rules of Court, rule 8.304(b)(5) [[i]f the defendants notice of appeal contains a statement under (4) [that the appeal is based on the denial of a motion to suppress evidence under Pen. Code, 1538.5 or grounds that arose after entry of the plea and do not affect the pleas validity], the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1) [by obtaining a certificate of probable cause]].) However, having timely filed a notice of appeal that specified a noncertificate ground for appeal -- denial of a motion to suppress evidence under Penal Code section 1538.5 -- Latham would be entitled to raise on appeal additional noncertificate issues not identified in the notice. (See People v. Jones (1995) 10 Cal.4th 1102, 1109-1113 [rule requiring specification of noncertificate issues in notice of appeal in absence of certificate of probable cause was not intended to, and does not by its terms, create a new procedure in which trial counsel must attempt to anticipate and correctly characterize, before the record has been prepared, every claim that may be raised in the appeal]; Mendez, at p. 1104 [appeal based on notice of appeal specifying noncertificate issues not restricted to those noncertificate issues expressly identified in notice; however, appeal may not be expanded to include certificate issues].) By extension, therefore, under People v. Kelly, supra, 40 Cal.4th 106 and People v. Wende, supra, 25 Cal.3d 436, in this case we have an obligation to conduct an independent review of the record to determine whether there are any arguably meritorious noncertificate issues.
With respect to the issue identified in the notice of appeal, because no motion to suppress evidence was filed in the trial court, there is nothing for us to review. With respect to other potential noncertificate issues (for example, sentencing questions that do not in substance challenge the validity of Lathams plea itself), we have examined the record and are satisfied Lathams attorney has fully complied with the responsibilities of counsel and no arguable issue exists.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
WOODS, J. ZELON, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
