P. v. Dimery

Filed 11/28/07 P. v. Dimery 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Arlan Harrell, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On September 19, 2006, appellant, Ray Dimery III, was charged in a criminal complaint with feloniously making a criminal threat (Pen. Code, 422, count one),^[1]being a convicted felon in possession of a firearm ( 12021.1, count two) and misdemeanor vandalism ( 594, subd. (a), count three). The complaint alleged that appellant had a prior serious felony conviction in 1990 for robbery within the meaning of the three strikes law ( 211, 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).

On October 3, 2006, the court granted the prosecutors motion to amend count two to allege a violation of subdivision (a)(1) of section 12021 and to add, by interlineation, a prior prison term enhancement allegation ( 667.5, subd. (b)) for the 1990 robbery. The parties entered into a plea agreement whereby appellant agreed to plead no contest to count two and admit the three strikes allegation and the prior prison term enhancement. The court indicated a prison term of three years and agreed to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the prior serious felony allegation.^[2]

Appellant executed a felony advisement, waiver of rights, and plea form. The form noted appellant would admit count two as a violation of section 12021, subdivision (a)(1), admit the prior serious felony conviction in 1990, and that he served a prior prison term. The form stated the court indicates Romero and a midterm plus a prior prison term enhancement for a total prison term of three years. The form stated that appellant faced a maximum possible prison sentence of seven years.

The trial court advised appellant of his constitutional rights, which appellant waived. The court advised appellant of the consequences of his plea and the parties stipulated to a factual basis for the plea. Appellant admitted count two and that he committed a prior serious felony, robbery, in 1990. Appellant further admitted he served a term in state prison for a violation and that [he had] not been free of the California Department of Corrections and Rehabilitation for a period of five years at the time he committed this current offense, which indicates you were committed to the California Department of Corrections and Rehabilitation for that same robbery conviction on or about October 30th, 1990.^[3]

At the sentencing hearing on November 29, 2006, the parties indicated they had received and read the probation report and did not note any additions or corrections to the report. The court noted this case was a plea to a midterm lid of section 12021, subdivision (a)(1) with an admission to a prior serious felony and a prison term enhancement. The court stated it indicated it would exercise its discretion to strike the prior serious felony conviction. The court proceeded to strike the prior serious felony conviction pursuant to section 1385 and Romero.

Defense counsel requested the court to exercise further discretion to strike the prior prison term enhancement leaving appellant to a maximum sentence of two years. The prosecutor requested a prison term of three years. The court stated it was not inclined to strike the prior prison term enhancement and imposed a sentence of two years on count two plus one year for the prior prison term enhancement. The court granted applicable custody credits and imposed a restitution fine.

On appeal, appellant contends he was subject to the wash out provision of section 667.5, subdivision (b) and could not have been sentenced for that enhancement. He also contends the trial court erred in imposing a security fee pursuant to section 1465.8. Appellant acknowledges that he does not have a certificate of probable cause, but believes he does not require one because he is challenging the trial courts abuse of its sentencing discretion.^[4]

PRIOR PRISON TERM ENHANCEMENT

Appellant contends that although there is a qualifying prison term enhancement in the record, the prior prison term enhancement for his 1990 conviction must be stricken because it no longer qualifies as an enhancement. Appellant argues he did not admit that the enhancement had not washed out and that imposition of the one-year term was an unlawful act outside the trial courts jurisdiction. Appellant further contends that his failure to obtain a certificate of probable cause should not preclude appellate review because he is not challenging the plea or the term imposed. In support of this point, appellant relies on, among other authorities, People v. Buttram (2003) 30 Cal.4th 773 (Buttram) and People v. Jerome (1984) 160 Cal.App.3d 1087, 1093 (Jerome).

In Buttram, the California Supreme Court found that an appellant in a criminal case did not require a certificate of probable cause to challenge the trial courts exercise of sentencing discretion where the parties agreed to a lid. By agreeing only to a maximum sentence, the parties leave unresolved the proper sentence within that maximum and the trial courts exercise of its sentencing discretion is subject to review. (Buttram, supra, 30 Cal.4th at pp. 785-786.)

In Jerome, the defendant contended his guilty plea to oral copulation with a person under 14 years of age was fatally defective because the complaint expressly alleged the victim was 15 years old. (Jerome, supra, 160 Cal.App.3d at p. 1093.) The court in Jerome held that because it was legally impossible to commit the alleged crime against a victim who was too old for the offense, the trial court acted in excess of its jurisdiction when it imposed sentence for that crime. (Id. at p. 1094.)

The Buttram case was followed by People v. Shelton (2006) 37 Cal.4th 759 (Shelton). The defendant in Shelton was sentenced to consecutive sentences for stalking ( 646.7, subd. (b)) and for making a criminal threat ( 422). The defendant appealed, asserting that the courts sentence violated section 654. The sentence imposed was the lid. (Shelton, supra, 37 Cal.4th 759 at pp. 764-765.)

In deciding Shelton, the California Supreme Court distinguished its decision in Buttram, finding that Buttram permitted an appeal without a certificate of probable cause where the trial court allegedly abused its discretion in sentencing a defendant within a specified sentencing range. Shelton reasoned that because the claim on appeal in Buttram was limited to the assertion that the trial court abused the discretion the parties intended it to exercise, there was no attack on the validity of the plea bargain. The appellate challenge was directed to the trial courts exercise of sentencing discretion, an issue contemplated and reserved by the agreement itself. (Shelton, supra, 37 Cal.4th at p. 770.)

Shelton noted that Buttram expressly distinguished the situation where the defendant on appeal challenges the courts authority to impose the lid sentence contemplated by the parties. (Shelton, supra, 37 Cal.4th at p. 770.) The Shelton court found that the defendant before it did not reserve, either expressly or impliedly, a right to challenge the trial courts authority to impose the lid sentence. (Id. at p. 769.) Shelton concluded that the defendant there was challenging the authority of the court to impose the lid sentence in violation of section 654. (Shelton, supra, 37 Cal.4th at p. 770.)

Appellant cites Buttram for the proposition that he does not have to obtain a certificate of probable cause to challenge the trial courts imposition of the prior prison term enhancement. Shelton dealt with the issue that the trial court violated section 654 in sentencing the defendant to a consecutive term. The Shelton case expressly noted the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Shelton, supra, 37 Cal.4th at p. 768.)

By urging that the trial court imposed a sentence on a prior prison term enhancement he contends washed out, appellant is necessarily urging that the trial court could not lawfully impose the challenged sentence. Appellant further relies on Jerome which held that the trial court acted in excess of its jurisdiction in imposing a sentence based on allegations which made that particular offense legally impossible. Although in his reply brief appellant tries to couch his argument as an abuse of sentencing discretion by the trial court, his contention is an attack on the authority of the trial court to impose the prior prison term enhancement.

Appellants argument is distinguishable from the alleged abuse of sentencing discretion that formed the basis of the holding in Buttram. Consequently, appellants contention is, in substance, a challenge to the validity his negotiated plea and requires a certificate of probable cause. Appellants failure to procure a certificate of probable cause is fatal to appellate review of this issue on the merits. (Shelton, supra, 37 Cal.4th at p. 771.)

We hold that appellants failure to obtain a certificate of probable cause forecloses his challenge to the trial courts imposition of a sentence on the prior prison term enhancement.

SECURITY FEE

Appellant contends the trial court did not order a $20 security fee pursuant to section 1465.8, subdivision (a)(1) and that it must be stricken from the abstract of judgment.^[5] Although the court did not expressly make this order in the reporters transcript of the sentencing hearing, it does appear in the clerks transcript of the sentencing hearing. The security fee in this statute is mandatory. We do not find the trial courts failure to expressly state it was imposing this fee to control other portions of the record showing that it was imposed, especially where there is not an actual conflict on that point between the clerks transcript and the reporters transcript. (People v. Rogers (2006) 39 Cal.4th 826, 859, fn. 12.)

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Levy, J.

^[1] All statutory references are to the Penal Code.

^[2] Defense counsel noted there was no objection to the amendments to the criminal complaint. Counsel stated appellant would make a motion to strike the prior serious felony conviction. The court indicated it would strike the prior serous felony conviction pursuant to Romero, the court indicated a midterm of two years plus one year for the prison prior for a total prison term of three years to run concurrent with any violation of parole. The court stated that this reflected the discussions between the court and the parties in chambers.

^[3] The probation report indicates that appellant served a prison term beginning in 2005 for felony drunk driving. Appellant, who was born on April 16, 1972, had been 18 for almost a month when he was arrested for robbery on May 14, 1990. He was committed to the California Department of Corrections for three years and housed in the California Youth Authority. On January 31, 1997, appellant was arrested for sale of cocaine base (Health & Saf. Code,  11352) and a prior serious felony conviction within the meaning of the three strikes law. He entered a guilty plea to these allegations on June 19, 1997. The plea agreement was to a lid of six years in prison. The record from that conviction is discernable only from the probation report prepared in that action in 1997. The current probation report does not refer specifically to this 1997 conviction, but to convictions in 1997 for drunk driving and driving without a drivers license. The probation report further indicates that appellant had a 2005 conviction for felony drunk driving for which he was committed to state prison.

^[4] Because appellants contentions on appeal concern only his sentence, we do not present the facts underlying appellants offense.

^[5] In relevant part, section 1465.8, subdivision (a)(1) states that a court security fee of $20 shall be imposed on every conviction for a criminal offense.