P. v. Rosenfeld

Filed 10/10/07 P. v. Rosenfeld 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Darlene E. Schempp, Judge. Affirmed.

Jesse C. Rosenfeld, in pro. per.; John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

______________________________

On May 6 and 7, 2005 Jesse C. Rosenfeld negotiated forged checks that had been stolen from the United States mail. On July 29, 2005 Rosenfeld and his wife, Cynthia Whitney, opened a business account at a Citibank branch in Sherman Oaks, using forged and stolen checks and fraudulent identification. The couple later made several withdrawals from the account resulting in the loss of more than $9,000 to Citibank.

Rosenfeld was charged by information on December 22, 2005 with 11 counts of forgery (Pen. Code, 470, subd. (b)),^[1]two counts of grand theft of personal property ( 487, subd. (a)), one count of identity theft ( 530.5, subd. (a)), one count of possession of a forged drivers license ( 470b) and one count of possession of a forged item ( 475, subd. (a)). It was further alleged that Rosenfeld had previously served two separate prison terms for felonies (identity theft) within the meaning of section 667.5, subdivision (b).

On December 22, 2005 Rosenfeld appeared in propria persona and pleaded not guilty to the charges and denied the special allegations. He represented himself throughout most of the proceedings. Before and after his lengthy preliminary hearing Rosenfeld filed various motions and other requests, which were denied by the trial court.^[2]On February 10, 2006 he withdrew his motion for discovery under Evidence Code sections 1043 and 1045 and Pitchess v.Superior Court (1974) 11 Cal.3d 531. On March 2, 2006 and April 4, 2006 Rosenfeld filed motions to suppress evidence ( 1538.5) that were heard on April 4, 2006.

At the hearing on the motion to suppress evidence, Cheryl Ross, the financial center manager for Citibank, testified, after reviewing a business account application for No Mirage State Funded Capital Ventures (No Mirage) in 2005, she determined additional documentation was necessary before the account could be opened. In late July or early August 2005 Ross telephoned Whitney, one of the account applicants, and told her why she was calling. Whitney had Ross speak to her husband, who identified himself to Ross as Tom and who explained to Ross the nature of the No Mirage business and why no additional documentation was necessary to open the account. Satisfied with the explanation, Ross terminated the telephone call.

On August 5, 2005 Ross learned from an assistant manager of the Sherman Oaks branch a block had been placed on the No Mirage account because two checks deposited into the account had been altered. Ross contacted Citibanks security unit and was told to have the customer on the account come into the Sherman Oaks branch and then to telephone police. Ross telephoned Tom and told him Citibank required additional documentation of the No Mirage business address before checks could be ordered. Tom agreed to provide the requested documentation the following day.

On August 6, 2007 Rosenfeld came to the Sherman Oaks branch in response to Rosss telephone call and went to a teller window. Two tellers recognized Rosenfeld and identified him to Ross, who then called police. Several Los Angeles Police officers, including Officer Howard Ekerling, arrived at the Sherman Oaks branch. Ekerling spoke with Ross and learned about the problems with the No Mirage account and the questionable transactions made involving the account. Ekerling detained Rosenfeld.

Sergeant Melvin Patton arrived at the Sherman Oaks branch and saw Officer Ekerling talking with Rosenfeld. Patton took over interviewing Rosenfeld while Ekerling obtained further information from the branch manager as to whether a crime had actually occurred. After Ekerling left, Rosenfeld told Patton he did not have an open account at that bank. Ekerling returned and informed Patton Rosenfeld had opened a Citibank account on which he had signed several fraudulent checks. At that point, Patton handcuffed Rosenfeld and conducted a search of his person. Patton retrieved a wallet and inside found a drivers license in the name of Thomas Shoard. There was also $2,032 in cash that Patton returned to Rosenfeld.

Officer Douglas Bowler also responded to the Sherman Oaks branch. Based on interviews and additional investigation, Bowler concluded the No Mirage account had been opened with fraudulent checks and Rosenfeld and codefendant Whitney had withdrawn money on that account. Bowler went to the lobby where Rosenfeld had been detained, obtained the wallet and drivers license from Sergeant Patton, and checked the status of the license by using the computer of his patrol car. Bowler discovered the drivers license was valid, but there was an outstanding felony warrant for Thomas William Shoard, an alias. Bowler told Rosenfeld about the outstanding warrant; Rosenfeld denied he was on parole and insisted his name was Thomas William Shoard. Rosenfeld was arrested and transported to the police station, where he ultimately admitted his true name was Jesse Rosenfeld.

After hearing the evidence and listening to argument, the trial court denied the motion to suppress. Following the denial of his motion to suppress evidence, Rosenfeld relinquished his propria persona status and the Los Angeles County Office of the Alternate Public Defender was appointed to represent him on April 12, 2006. On May 22, 2006 Rosenfeld appeared with David Sakata, a deputy alternate public defender, and agreed to enter a negotiated plea of no contest to four counts of forgery and one count of possession of a forged item in exchange for an aggregate state prison sentence of four years eight months.

The record of the plea hearing shows Rosenfeld was advised of and waived his constitutional rights and was advised of and acknowledged he understood the consequences of his plea, including the fact he was to receive an aggregate state prison sentence of four years eight months as a result of his plea. Rosenfeld further stated he was entering his plea knowingly, intelligently, freely and voluntarily. He also agreed to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), thereby allowing the court to consider the dismissed counts in setting the restitution amount. Additionally, the record reflects Rosenfeld had the opportunity during the plea hearing to speak with attorney Sakata about the plea agreement.

Rosenfeld pleaded no contest to counts 2, 4, 7, 8, and 12 pursuant to the plea agreement. Attorney Sakata joined in the waivers of Rosenfelds constitutional rights and stipulated Rosenfelds plea had been entered pursuant to People v. West (1970) 3 Cal.3d 595. The trial court found Rosenfelds waivers and plea were voluntary, knowing and intelligent.

On June 1, 2006 Rosenfeld filed a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), indicating his displeasure with attorney Sakata, combined with a motion to withdraw his plea. On June 2, 2006 the Office of the Alternate Public Defender declared a conflict of interest. At Rosenfelds request the trial court appointed a bar panel attorney for the pending sentencing and restitution hearings. On June 16, 2006 Sammy Weiss substituted for Sakata as Rosenfelds attorney of record.

On October 6, 2006 Rosenfelds motion to withdraw his plea was heard and denied. The same day the trial court sentenced Rosenfeld in accordance with his plea agreement to an aggregate state prison term of four years eight months: The two-year middle term for count 3 (forgery) plus consecutive terms of eight months or one-third the two-year middle term for each of counts 4, 7, and 8 (forgery) and count 12 (possession of a forged item). The court ordered Rosenfeld 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. The remaining charges and special allegations were dismissed pursuant to the plea agreement. The trial court set a restitution hearing for a later date.

Rosenfeld filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause but limited its scope to a challenge to the denial of the motion to suppress evidence.

We appointed counsel to represent Rosenfeld on appeal. After examination of the record counsel filed an Opening Brief in which no issues were raised.

On May 18, 2007 we advised Rosenfeld he had 30 days within which to personally submit any contentions or issues he wished us to consider. After we extended his time, Rosenfeld submitted a supplemental brief on September 10, 2007 in which he asserted he was tricked by the trial court, the deputy district attorney, and attorney Sakata into agreeing to be sentenced in violation of double jeopardy, the California determinate sentencing law and section 654; the trial court wrongly excluded from his certificate of probable cause these issues as well as the issue of the improper suppression of his Marsden motion; and the trial courts imposition of consecutive terms as part of his sentence was prejudicial. In conjunction with a petition for writ of habeas corpus he filed in this court on May 31, 2007, Rosenfeld claimed on appeal his motion to suppress evidence was improperly denied because he was arrested without a valid warrant and in violation of the Harvey-Remers-Madden rule, resulting in the unlawful search of his person and his car.^[3]

A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause can only challenge the denial of a motion to suppress evidence or raise grounds arising after the entry of the plea that do not affect its validity. (Cal. Rules of Court, rule 8.304(b).) Although the trial court granted in part Rosenfelds request for a certificate of probable cause, by limiting its scope to the denial of the motion to suppress, the court effectively denied the request. Accordingly, to the extent Rosenfeld contests the validity of his sentence imposed as part of his plea agreement, he is, in substance, attacking the validity of his plea, and his notice of appeal is inoperable. ( 1237.5; see People v.Shelton (2006) 37 Cal.4th 759, 769-771; People v. Panizzon (1996) 13 Cal.4th 68, 79.)

As for the denial of his motion to suppress evidence, neither Rosenfelds detention nor his arrest was contrary to the so-called Harvey-Remers-Madden rule. It is well settled in California officers can make arrests based on information and probable cause furnished by other officers. (Remers v. Superior Court (1970) 2 Cal.3d 659, 666; People v. Madden (1970) 2 Cal.3d 1017, 1021.) These cases, however, require that when the first officer passes off information through official channels that leads to arrest, the officer must also show basis for his probable cause. In other words, the so-called Harvey-Madden[] rule requires the basis for the first officers probable cause must be something other than the imagination of an officer who does not become a witness. [Citation.] (People v.Ramirez (1997) 59 Cal.App.4th 1548, 1553; People v. Gomez (2004) 117 Cal.App.4th 531, 540-541.) The hearing on the motion to suppress evidence established Officer Ekerling had detained Rosenfeld only after speaking with Ross, the complaining witness, which led the officer to form a reasonable suspicion Rosenfeld had been involved in criminal activity. Sergeant Patton arrested Rosenfeld only after he had spoken with Rosenfeld and had Ekerling obtain additional information from the branch manager to establish probable cause. Sergeant Pattons reliance on his conversation with Rosenfeld and on Officer Ekerlings reported information was entirely reasonable and consistent with the Harvey-Madden-Remers rule. Rosenfelds detention and arrest were lawful; the search of his person and his car did not violate the Fourth Amendment.

We have examined the entire record and are satisfied Rosenfelds attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.

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^[1] Statutory references are to the Penal Code unless otherwise indicated.

^[2] Among the documents Rosenfeld filed were demurrers and supplemental demurrers, a request for a bill of particulars and a supplement, a motion for authorization to interview a witness in custody, a motion to set aside the information and a motion to dismiss, all of which were denied. Rosenfelds motion for return of life savings was granted if the money is not held as evidence. On March 2, 2006 the trial court determined the money was not [to be] released because it was booked as evidence, not as property.

^[3] We have denied Rosenfelds petition for writ of habeas corpus by separate order.