P. v.
Filed 6/7/13 P. v. Washington CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN MARCEL WASHINGTON,
Defendant and Appellant.
B242566
(Los Angeles
County
Super. Ct.
No. YA081613)
THE COURT:
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Defendant
Justin Marcel Washington appeals from the judgment entered following
his plea of “no contest†to one count of
Code
sections 664 and 187, subdivision (a). Defendant admitted a gang allegation under
section 186.22, subdivision (b)(1)(C) and an allegation under section 1170,
subdivision (h)(3), which required him to serve his sentence in
felony convictions. Pursuant to the plea
bargain accepted by defendant, the trial court sentenced him to the high term
of nine years for the attempted murder and a consecutive term of 10 years for
the gang enhancement, for a total sentence of 19 years. The trial court granted defendant 306 actual
custody days and 46 days of conduct credit
(15 percent) for a total of 352 days.
(§§ 667.5, subd. (c), 2933.1.)
We
appointed counsel to represent
appellant on this appeal. After
examination of the record, counsel filed an opening
brief containing an acknowledgment that they had been unable to find any
arguable issues. On January 2, 2013, we advised defendant that he had
30 days within which to personally submit any contentions or issues that he
wished us to consider. On February 4, 2013, we granted defendant
an extension of time until February
15, 2013, to file his supplemental brief. No response has been received to date.
The facts
presented at the preliminary hearing
reveal that defendant and his codefendant, Deanthony Davis, confronted Khary
Malone at a Gardena park where
Malone had gone to play basketball with his cousin and two friends. Defendant shoulder-bumped Malone and asked
him, “Where are you from?†Malone
replied, “We don’t bang.†Defendant
said, “So way [sic] Shotgun Crip.†Davis
then came from behind defendant and shot Malone in the face in the area of the
left jaw. The bullet entered Malone’s
chin and exited below his earlobe. Malone
identified defendant and Davis at the preliminary hearing.
Detective Toshio
Hirai testified as a gang expert and was of the opinion that Davis and
defendant were members of the Shotgun Crips gang. His opinion was based on prior contacts and
discussions with several other gang experts.
He testified regarding felony convictions of two other Shotgun Crips
gang members. Detective Hirai believed
that the instant offense was committed for the benefit of, in association with,
or at the direction of the Shotgun Crips.
On October 12, 2011, defendant was
charged in a first amended information with attempted murder. The information also alleged that: (1) a principal used and discharged a firearm
causing great bodily injury
(§ 12022.53, subds. (b), (c), (d), (e)); (2) the offense was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)( C)); (3) the offense
was a serious felony (§ 1192.7, subd. (c)(28)); (4) defendant personally
inflicted great bodily injury (§§ 1203.075, 12022.7, subd. (a)); (5) the
offense was a serious and violent felony requiring prison incarceration (§
1170, subd. (h)(3)); and (6) defendant suffered a 2009 conviction of a serious
or violent felony (§§ 667, subd. (a)(1), 667, subds. (b) – (i), 1170.12, subds.
(a) – (d). On April 30, 2012, a second amended information
added the allegations that the attempted murder was committed willfully,
deliberately, and with premeditation within the meaning of section 664,
subdivision (a). The trial court
informed defendant that his maximum penalty was life plus 25 years to life.
On May 1, 2012, defendant agreed to a
plea bargain. The trial court granted
the People’s motion to dismiss defendant’s strike prior in order to reach a
disposition in the interest of justice. After
being advised of his constitutional rights and the consequences of his plea,
defendant pleaded “no contest†and received the agreed-upon sentence of
19 years.
On June 18, 2012, defendant filed a
appeal was based on the sentence or other matters occurring after the plea and
that the appeal challenged the validity of the plea. Defendant’s request for a certificate of
probable cause stated that he was willing to take a plea of 10 years, but not
19 years. He asserted he was not guilty
of attempted murder, and his attorney lied to him about his plea and then
scared him into taking 19 years. He
would feel justice was served if he received a sentence modification, but
otherwise, he would like to go to trial. The trial court denied defendant’s request for
a certificate of probable cause.
Section
1237.5 provides, in pertinent part, “No appeal shall be taken by the defendant
from a judgment of conviction upon a plea of guilty or nolo contendere, . . .
except where both of the following are met:
[¶] (a) The defendant has filed with
the trial court a written statement, executed under oath or penalty of perjury
showing reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings.
[¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal . . . .†California Rules of Court, rule 8.304(b) sets
forth both the section 1237.5 rule and its exceptions. If the trial court denies a certificate of
probable cause, the appeal is inoperative unless the appeal is based on the
denial of a motion to suppress evidence or on grounds that arose after entry of
the plea and do not affect the plea’s validity.
Moreover, those issues
that relate to defendant’s 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, 89, 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).†(Id.
at p. 73; accord People v. Cuevas
(2008) 44 Cal.4th 374, 382-384.) In
the California Supreme Court interpreted former California Rules of Court, rule
31(d), which corresponds to current rule 8.304(b)(1)(3), and held that section
1237.5 and its implementing rules of court “should be applied in a strict
manner.†(People v. Mendez, supra,
at p. 1098.)
The record
clearly shows that the parties expressly agreed to imposition of a
19-year sentence. Defendant was facing a
possible sentence of life plus 25 years if the jury convicted him of the
attempted murder and found the allegations true. Since defendant received the sentence for
which he bargained, any challenge to his sentence constitutes a challenge to
the validity of his plea. (
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 attorneys have fully
complied with their responsibilities and that no
v. Wende (1979) 25 Cal.3d 436, 441.)
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
further references to statutes are to the Penal Code unless stated otherwise.
