P. v. Velasquez

Filed 6/5/07 P. v. Velasquez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

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

Karen J. Nudell, Judge. Dismissed.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Jose Juan Velasquez (Velasquez) appeals the judgment entered following his plea of no contest to the sale or transportation of cocaine. (Health & Saf. Code, 11352, subd. (a)).^[1]Pursuant to a negotiated plea agreement, the trial court sentenced Velasquez to three years in state prison, then referred him to the California Rehabilitation Center (C.R.C.). We dismiss Velasquezs appeal as inoperative for failure to obtain a certificate of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[2]

Los Angeles Police Officers received information from an anonymous informant that Velasquez was involved in the sale of narcotics. The officers were provided with the number to a cellular telephone and told Velasquez used the phone for a call and delivery type business.

On April 11, 2006, an undercover officer set up a narcotics deal with one of Velasquezs codefendants, Richard Gagne (Gagne). Undercover officers met Gagne at a designated location and a short time later, Velasquez, accompanied by a small child, arrived in his vehicle. While undercover officers watched, Velasquez and Gagne engaged in a conversation. Velasquez and the child then left the area and Gagne attempted to sell narcotics to one of the undercover officers.

As a result of the incident, four men, Velasquez, Gagne, Enrique Suchite (Suchite) and Carlos Castellanos (Castellanos), were taken into custody. Narcotics and a pipe were recovered from Velasquez. The Department of Children and Family Services was contacted and the child was taken from Velasquez and temporarily placed in the custody of its grandmother.

2. Procedural History.

In a felony complaint filed April 13, 2006, Velasquez and his three codefendants,

Gagne, Suchite and Castellanos, were charged with the sale or transportation of cocaine ( 11352, subd. (a)). It was further alleged the offense took place within 1,000 feet of the Pinecrest School, which was open for classes and school related programs ( 11353.6, subdivision (b)).

As to Velasquez only, the complaint charged that he, having custody of Acuna, a two-year-old child, violated Penal Code section 273a, subdivision (b) by willfully causing and permitting said child to be placed in such a situation that its person and health [might] be endangered.

It was further alleged as to Velasquez that he had suffered a prior conviction for possession for sale of cocaine base (11351.5), within the meaning of section 11370.2, subdivision (a).

At proceedings held on June 5, 2006, Velasquez entered into a negotiated plea agreement under the terms of which he was to plead no contest to the sale or transportation of cocaine ( 11352, subdivision (a)), in exchange for a sentence of three years in state prison with a referral to C.R.C. After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to present a defense, and his privilege against self-incrimination, Velasquez pleaded no contest to the sale or transportation of cocaine. The trial court sentenced Velasquez to the low term of three years in state prison, then referred him to C.R.C. Velasquez was awarded presentence custody credit for 56 days actually served and 28 days of good time/work time, for a total of 84 days. The trial court ordered Velasquez to pay a $200 restitution fine (Pen. Code, 1202.4), a $200 parole revocation restitution fine, stayed pending his successful completion of parole (Pen. Code, 1202.45), and a $20 court security fee (Pen. Code, 1465.8, subd. (a)(1)).

At counsels request, before ending the proceedings the trial court addressed Velasquez and stated, The Court is ordering you [to] go to C.R.C. Its ultimately up
to C.R.C. The Court thinks youre going to go there, but there may be a reason you dont go there. But Im ordering that you be sent there. The following then occurred: Defendant Velasquez: Okay. Because I dont want to go back to prison. [] The Court: I understand, sir. But there is a chance they would not take you. I dont think thats going to happen in this case, but there is that chance, in which case you would end up going back to State Prison. [] Defendant Velasquez: If they dont want me at C.R.C., they are going to send me back to prison? [] The Court: If they wont take you at C.R.C. I dont know why they wouldnt take you. The Court is ordering you to go to C.R.C. If for some reason they dont take you, they are going to send you back to State Prison. [] Defendant Velasquez: Well, Im not going to go. [] The Court: Im just telling you I dont think its going to happen. [] Defendant Velasquez: Can I get a forthwith so I can go faster? [] The Court: Yes, Well send you forthwith. Following a short break in the proceedings, the following occurred: [Counsel for Velasquez]: Your Honor, if the Court will allow and if counsel will allow, Im just going to explain to Mr. Velasquez as Ive explained to him in the lockup what C.R.C. program is and what he pled to and what he can expect. And I have advised him this isnt a promise. This is almost entirely based on his performance while at C.R.C. [] The commitment is to State Prison for three years. The Court is going to allow you to serve that time at C.R.C., which is the California Rehabilitation Center. Now, while you are there, you dont get any credit against the three years. But what they do is this: They have you begin a drug treatment program. The minimum Ive ever heard about . . . is six months. Thats for somebody who goes in, who is just spectacular, and they think this person has really understood the nature of this addiction, what to do to counter it, and has adopted the principles thereof. They can hold you to nine months, which is the next lowest Ive ever heard. And finally, they can hold you to 12 months. Now, thats the outside of what they will hold you. [] You will have a seven year tail, meaning for seven years you are on parole to C.R.C. If at any time in that seven years you pick up another drug conviction, you can be sent back to C.R.C. for up to another year again. If C.R.C. at some point determines you are just not going to do what they want you to do and what they want you to do for yourself, then you can be committed to State Prison for three years, and the only credit you will have is the 56 actual you spent in up to today plus whatever good time, work time you have today. [] Do you understand that?
[] Defendant Velasquez: Yes. [] The Court: Do you agree to that? [] The Defendant: Yes. [] The Court: Do you have any other questions? [] The Defendant: Can I get a forthwith? [] The Court: Yes, you can.

After the trial court then terminated Velasquezs probation in another case, the proceedings ended.

On August 14, 2006, Velasquez filed a timely notice of appeal and requested a certificate of probable cause. In his request for a certificate, Velasquez stated, I was under the impression and understood the intention of the court to be that I would be on a civil commitment . . . not the term to the department of corrections. I was totally misunderstood, please call me back to the court to clarify this matter. The trial court denied Velasquez request for a certificate of probable cause on August 14, 2006.

This court appointed counsel to represent Velasquez on appeal on November 28, 2006.

CONTENTIONS

After examining the record, counsel for Velasquez filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed April 13, 2007, the clerk of this court advised Velasquez to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider. In response, Velasquez filed a letter brief in which he contends he was not given the terms of the plea for which he bargained in that the trial court failed to order the evaluation to send [him] to C.R.C.

DISCUSSION

When a defendant enters a plea of guilty or no contest, he may not bring an appeal challenging the validity of the plea unless he has sought, and the trial court has issued,
a certificate of probable cause showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. (People v. Emery (2006)
140 Cal.App.4th 560, 562; see Pen. Code, 1237.5.) Velasquezs contention the trial court failed to order the evaluation to send him to C.R.C. goes to the validity of the plea itself and, as such, is not cognizable on appeal absent a certificate of probable cause. (See People v. Shelton (2006) 37 Cal.4th 759, 766 [ [A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause.].) Moreover, even if we were to consider Velasquezs contention, it would be without merit. Velasquez agreed to plead guilty to the sale or transportation of cocaine after having been thoroughly advised by both the trial court and his counsel that, although the trial court would refer him to C.R.C., there was no guarantee C.R.C. would accept him. Both the court and counsel informed Velasquez it was possible he would be required to serve the three year sentence in state prison. By accepting the negotiated terms of the plea, Velasquez waived any claim rejection by C.R.C. would render his plea bargain invalid. (Ibid.)

Velasquezs reliance on People v. Olea (1997) 59 Cal.App.4th 1289 is misplaced. There, pursuant to a negotiated plea bargain, Olea pleaded guilty to five counts of burglary in exchange for dismissal of a number of other counts charging him with completed or attempted sexual assaults against some of the burglary victims. At sentencing, the trial court determined three of the burglaries were sexually motivated and, although the requirement had not been agreed upon as part of the plea bargain, directed Olea to register as a sex offender.

The appellate court determined the trial court had violated Oleas due process rights when it imposed the registration requirement. (People v. Olea, supra,
59 Cal.App.4th at p. 1298.) The court indicated, when a defendant agrees to a plea bargain by which he or she pleads guilty to an offense not specifically included in the sex offender registration statute, and the registration requirement is not included as part of the bargain, the sentencing court may not subsequently require the defendant to register based on the underlying facts of the offense.

In the present case, the trial court did not order Velasquez to do anything outside the parameters of the plea agreement. It had been agreed the trial court would sentence Velasquez to three years in state prison, then refer him to C.R.C. That is exactly what the trial court did.

APPELLATE REVIEW

We have examined the entire record and are satisfied Velasquezs counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Velasquez pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed as inoperative. (In re Chavez (2003) 30 Cal.4th 643, 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1094-1099; Pen. Code, 1237.5.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] All further statutory references are to the Health and Safety Code unless otherwise indicated.

^[2] The facts have been taken from the probation report.