P. v. Yang

Filed 9/25/07 P. v. Yang CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT

APPEAL from a judgment of the Superior Court of Fresno County. Jeff Hamilton and John Vogt, Judges.

Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

Appellant, Kao Yang, was charged in a criminal complaint filed June 20, 2006 with second degree burglary (Pen. Code,  459 & 460, subd. (b), count one)^[1]and receiving stolen property ( 496, subd. (a), count two).

On July 18, 2006, Yang entered into a plea agreement. Yang executed a felony advisement, waiver of rights, and plea form (form) acknowledging, and waiving, his constitutional rights pursuant to Boykin/Tahl.^[2] In exchange for a no contest plea to count one, Yang would receive a lid of the two-year midterm and count two would be dismissed. Yang initialed acknowledgments on the form that he would have to pay a restitution fine of between $200 and $10,000.

The trial court reviewed the terms of the plea agreement with Yang. Counsel for a codefendant, Cherith Drescher, stated the case was within the police reports.^[3] Yangs counsel, Kevin Thompson, joined in that statement.^[4] The court questioned Yang and determined that he had read, understood, initialed, signed, and had had no questions concerning the form. Yang indicated that he understood and was waiving his constitutional rights. Yang pled no contest to second degree burglary of a vehicle.

At the sentencing hearing, the trial court denied probation and sentenced Yang to the low prison term of 16 months. The court imposed a restitution fine of $200 and granted Yang applicable custody credits.

Yangs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Yang was advised he could file his own brief with this court. By letter on April 16, 2007, we invited Yang to submit additional briefing. To date he has not done so.

DISCUSSION

We initially note that Yang failed to obtain a certificate of probable cause from the trial courts initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious errors in Yangs change of plea hearing. Yang was fully advised of the consequences of his plea and his constitutional rights. He bargained for and received the sentence of 16 months which was less than the midterm lid he accepted in the plea agreement.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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Before Harris, Acting P.J., Levy, J., Kane, J.

Judge Hamilton presided over appellants change of plea hearing. Judge Vogt sentenced appellant.

^[1] Unless otherwise noted, all further statutory references are to the Penal Code.

^[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^[3] The probation officers report was based on a report from the Clovis Police Department. At 4:57 a.m. on June 19, 2006, Clovis Police officers on patrol saw three males riding bicycles without lights on the sidewalk. One was Yang who was carrying an object in his hand that he dropped as soon as he saw the officers. Yang had dropped tools. The tool chest in a nearby pickup truck had been opened. Tools were scattered about. The victim told officers the tool chest had been secured prior to the theft. Though the three males fled, Yang was later arrested.

^[4] Drescher told the court that the case was within the police report and that her client, who pled no contest to a misdemeanor, was agreeing to a jail sentence of 365 days. Read in context, Thompsons concurrence with Dreschers statement was that there was a factual basis for the plea. Because Yang was admitting a felony with a two-year lid on his sentence, Thompson was most likely concurring with Dreschers statement that the case was within the police report, not that Dreschers client was receiving a misdemeanor sentence.