P. v. Loudermilk
Filed 11/18/08 P. v. Loudermilk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. PETER LYNN LOUDERMILK, Defendant and Appellant. | A121920 (Lake County Super. Ct. No. CR915223) |
Defendant appeals from a judgment following his plea of no contest and imposition of sentence. His counsel has raised no issues and asks this court for 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; see Smith v. Robbins (2000) 528 U.S. 259.) Defendant has been advised by counsel that he could file a supplemental brief raising any issues he wishes to call to this courts attention. He has not done so.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]
On March 10, 2008, defendant entered the Middletown Video Store and began harassing customers. The victim left the store with a customer and her dog. Defendant followed her, brandished a knife and threatened to kill the dog. Deputies from the Lake County Sheriffs Department arrived. The victim signed an order of arrest by a private person and directed the deputies to a van in which defendant was living. The deputies located the van, knocked on the door, and defendant was arrested when he exited. A piece of steel fashioned into a [home made] billy club and two knives were found in a search of the van. In a written statement defendant stated that he put duct tape on salvage scrap steel rod, kept at the foot of my bed. I did not know this is illegal, and sure wont do it again.
An information[2]was filed on May 16, 2008, charging defendant with the following: possession of a billy club (Pen. Code 12020, subd. (a)(1)), count one, and misdemeanor brandishing a weapon (Pen. Code 417, subd. (a)(1), count two. It was further alleged that defendant suffered a prior serious or violent felony conviction pursuant to the provisions of Penal Code sections 1170.12, subdivisions (a), (b), (c) and (d) and 667, subdivisions (b) through (i).
On May 19, 2008, defendant entered a no contest plea to count one pursuant to a plea agreement. The remaining count and prior conviction allegation were dismissed with a Harvey waiver.[3] On June 23, 2008, the court denied defendants motion to reduce count one to a misdemeanor pursuant to Penal Code section 17, subdivision (b) and sentenced defendant to the mitigated term of 16 months in state prison. In addition various fees and fines were imposed and he was awarded total credits of 159 days. This timely appeal followed.
DISCUSSION
Penal Code section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the admission for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) As defendant has not obtained a certificate of probable cause, our review is limited.
The defendant was represented by counsel at all stages of the proceedings. Prior to entering his plea he executed a change of plea form and was fully advised by the court of his rights and waived those rights. The court did not err by denying defendants motion to reduce the charge to a misdemeanor. A court has broad discretion in ruling on a motion pursuant to Penal Code section 17, subdivision (b). (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) We find no abuse of discretion here, particularly in view of defendants prior record. There are no sentencing errors.
DISPOSITION
After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.
__________________________________ Swager, J. | |
We concur: __________________________________ Marchiano, P. J. __________________________________ Flinn, J.* |
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[1]Since the present appeal is taken from a no contest plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation officers report filed July 17, 2008.
[2]We do not have a copy of the complaint before us. On May 2, 2008, a preliminary hearing was held based on the parties waiver of rights and submission of the matter upon an investigative report prepared by the Lake County sheriffs office. On May 9, 2008, defendant was held to answer.
[3]People v. Harvey (1979) 25 Cal.3d 754.
*Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
