P. v. Patterson















Filed 1/17/13 P.
v. Patterson CA2/2

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OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO




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THE PEOPLE, Plaintiff and Respondent, v. KENNETH PATTERSON, Defendant and Appellant.

B242258 (Los Angeles County Super. Ct. No. TA119659)

THE COURT: ^{href="#_ftn1"
name="_ftnref1" title="">*}

Defendant
Kenneth Patterson appeals from the judgment entered following his plea of “no
contest” to two counts of assault with a
firearm (Pen. Code, § 245, subd. (a)(2))href="#_ftn2" name="_ftnref2" title="">^[1] (counts 1 & 4). With respect to both counts, defendant
admitted that he personally used a firearm in the commission of the crime under
section 12022.5, subdivision (a). With
respect to count 1, defendant admitted that the crime was committed for the
benefit of a criminal street gang
within the meaning of section 186.22, subdivision (b).

Pursuant
to the agreed-upon disposition, the trial court sentenced defendant to a total
prison sentence of 20 years. In count 1,
the trial court imposed the midterm of three years plus a consecutive 10 years
for the firearm allegation and a consecutive five years for the gang
allegation, resulting in a sentence of 18 years for that count. In count 4, the trial court imposed a
consecutive sentence of one year (one-third the midterm) for the assault and a
consecutive one year (one-third the low term) for the gun allegation. The trial court granted the People’s motion
to dismiss the remaining counts and allegations, i.e., shooting at an inhabited
dwelling (§ 246) (count 2); attempted willful, deliberate, and
premeditated murder (§§ 664/187, subd. (a)) (count 3); an allegation of
personal discharge of a firearm in the attempted murder count (§ 12022.53,
subd. (c)); and all of the gang allegations accompanying these counts.

Because
defendant entered a plea before trial, the facts are summarized from the
transcript of his preliminary hearing. Edward Robinson and a friend were conversing
on the street when defendant approached them and gave them “looks.” Robinson’s friend asked “‘Why are you looking
at us so hard?’” Defendant said, “‘This
is my neighborhood. This is my
hood.’” Robinson asked what he meant,
and defendant replied, “This is eleven-six Kitchen Crip.” Robinson believed this was a gang. Robinson said, “‘Well, so what?’” Defendant then pulled a gun from his
waistband and pointed it at Robinson’s chest.

On
the following day, Robinson was standing on his porch when he saw defendant
drive by. A short time later defendant
returned and drove by again. He then
made a U-turn, drove back, and shot twice at Robinson’s house. Robinson had gone inside and locked the door,
but he was watching from inside the house.
One bullet went through the window of his mother’s room and one went
through the metal door and hit the wooden door.
Police officers later took Robinson to a field showup where he
identified defendant.

Detective
Armando Orellana testified that the shooting took place in the center of the
Kitchen Crips gang territory. A notebook
was found at defendant’s grandfather’s house, and it contained Kitchen Crips
gang writings and symbols. Detective
Orellana believed defendant was a member of Kitchen Crips and that defendant’s
crime was committed for the benefit of the gang.

During
the course of voir dire at defendant’s trial, the trial court announced that a
disposition had been reached whereby defendant would plead “no contest” to some
of the charges in exchange for an agreed-upon disposition of 20 years. The People amended the information to add a
second count of assault with a firearm, and the prosecutor read the charges to
defendant, explaining that his maximum sentence on all charges, should he be
convicted at trial, was life in prison.
The prosecutor explained the terms of the bargain, and defendant said he
understood. The prosecutor read
defendant his constitutional rights, which defendant said he understood, and
which he waived and gave up. The
prosecutor explained the consequences of defendant’s plea, including the fact
that he now had two strike offenses.
Defendant then entered his plea.
The trial court found that the plea was knowingly, intelligently, and
voluntarily made, and that there was a
factual basis for the plea and admissions.

We
appointed counsel to represent
defendant on this appeal. After
examination of the record, counsel filed an “Opening Brief” containing an
acknowledgment that he had been unable to find any arguable issues. On October 22, 2012, we advised defendant
that he had 30 days within which to personally submit any contentions or issues
that he wished us to consider.

On
December 4, 2012, defendant filed a supplemental brief in which he argues that
he was “the victim of ineffective assistance of counsel twice.” His first
attorney was ill when he took the case, and his condition and actions
jeopardized defendant’s case. After
defendant fired his first attorney, his second attorney was unprepared and did
not know how to proceed due to lack of time caused by the first attorney’s
negligence. His second attorney advised
defendant to accept a settlement that was in favor of the prosecution and
against defendant’s best interest.

The
record shows that defendant did not obtain a href="http://www.mcmillanlaw.com/">certificate of probable cause. He filed a notice of appeal and later an
amended notice of appeal in which he indicated that his appeal was based on the
sentence or other matters occurring after the plea that do not affect the
validity of the plea.

“A
defendant may not appeal ‘from a judgment of conviction upon a plea of guilty
or nolo contendere,’ unless he has obtained a certificate of probable
cause. [Citations.] Exempt from this certificate requirement are
postplea claims, including sentencing issues,
that do not challenge the validity of the plea. [Citations.]”
(People v. Cuevas (2008) 44
Cal.4th 374, 379; see also People v.
Mendez (1999) 19 Cal.4th 1084, 1095-1096.)
An appeal based on ineffective assistance of counsel following a no
contest plea requires a certificate of probable cause (Pen. Code, § 1237.5;
Cal. Rules of Court, rule 8.304(b); see In
re Chavez (2003) 30 Cal.4th 643, 651.)
Because defendant did not obtain a certificate of probable cause, the
appeal is “nonoperative” as to any such claim.
(People v. Stubbs (1998) 61 Cal.App.4th
243, 244-245.) The certificate
requirements of section 1237.5 “should be applied in a strict manner.”href="#_ftn3" name="_ftnref3" title="">^[2] (Mendez, supra, 19 Cal.4th
at p. 1098.) Defendant has not
identified any issue that is exempt from the requirement of a certificate of
probable cause following a no contest plea.


In
addition, any issues that relate to his sentencing in accordance with the plea
bargain to which he agreed may not be raised on appeal. In People
v. Panizzon (1996) 13 Cal.4th 68 (Panizzon),
the Supreme Court held that where a defendant is sentenced in accordance with
the terms of a plea bargain that provides for a particular sentence, and then
attempts to challenge that sentence on appeal, he must secure a certificate of
probable cause. The court explained that
since the defendant is “in fact challenging the very sentence to which he
agreed as part of the plea,” the challenge “attacks an integral part of the
plea[and] is, in substance, a challenge to the validity of the plea, which
requires compliance with the probable cause certificate requirements of section
1237.5 and [former] rule 31(d).”href="#_ftn4" name="_ftnref4" title="">^[3] (Panizzon, supra, 13
Cal.4th at p. 73; see also People v.
Buttram (2003) 30 Cal.4th 773, 780.)
The Panizzon court held that
the Court of Appeal erred in denying the People’s request for a dismissal. (Panizzon,
supra, at p. 73.) In
the absence of a certificate of probable cause, we must dismiss defendant’s
appeal. We have examined the entire
record and are satisfied that defendant’s attorney has fully complied with his
responsibilities and that no arguable
issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The
appeal is dismissed.