P. v. Thomas

Filed 1/13/10 P. v. Thomas CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul A. Bacigalupo. Dismissed.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * * * * * *

INTRODUCTION

Louis Thomas, Jr., appeals his judgment of conviction of two counts of second degree robbery, entered upon a plea of no contest. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues.^[1] Appellant was notified of his counsels brief and was given leave to file his own brief or letter stating any grounds or argument he might wish to have considered. Appellant was thereafter given an extension of time, but has submitted no brief or letter. We have reviewed the entire record and find no arguable issues. Further, appellant has appealed from a judgment entered upon a plea agreement, and has not obtained a certificate of probable cause from the trial court. We have determined that the ground appellant wished to challenge does not justify granting a certificate of probable cause and provides no exception to its requirement. We thus dismiss the appeal.

BACKGROUND

Nearly eight months after the preliminary hearing, appellant and others were charged in an amended and consolidated information, filed December 21, 2007, with having committed two robberies. In addition to two counts of second degree robbery (counts 13 and 14), in violation of Penal Code section 211, appellant was charged with one count of possession of marijuana for sale (count 18), in violation of Health and Safety Code section 11359.^[2]

With regard to the robbery charged in count 14, it was alleged that a principal personally used a firearm, within the meaning of section 12022.53, subdivisions (b) and (e)(1). It was alleged pursuant to section 186.22, subdivision (b)(1)(C), that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. It was further alleged as to counts 13, 14, and 18 that appellant had been convicted of five counts of robbery in 1998, in Los Angeles Superior Court case No. SA029447.

Appellants jury trial went forward August 18, 2008. After two witnesses testified for the prosecution, a short recess was taken, after which counsel informed the court that appellant had agreed to a plea bargain. Appellant would plead no contest to the robbery counts (counts 13 and 14), admit the gang and firearm allegations, applying them to count 13, agree to the high term on count 13, and admit his prior strike, a 1998 robbery conviction in Los Angeles Superior Court case No. SA029447. In exchange, appellant would be sentenced to no more than 27 years in prison.^[3]

Appellant told the court that he had discussed with his attorney the possible maximum term of 50 years to life, any possible defenses, and his rights, which he said he understood. Defense counsel stated that he was satisfied that his client understood the facts, his defenses, and rights, as well as the direct and indirect consequences of his plea.

The prosecutor informed appellant of his right to a jury trial, to cross-examine the witnesses against him, put on his own defense, testify, subpoena witnesses free of charge, and require their testimony, as well as his privilege against self-incrimination and his right to remain silent. Appellant stated that he understood and gave up his rights. The prosecutor informed appellant of other consequences of his plea, such as restitution fines, the consequences of a parole or probation violation, the immigration consequences, the taking of DNA, and sentencing as a third striker should he commit another crime.

Appellant stated that he understood, and pled no contest to counts 13 and 14. He admitted his 1998 felony conviction and the (uncharged) five-year enhancement pursuant to section 667.5, subdivision (a)(1). Appellant also admitted that count 13 was committed in violation of section 186.22, subdivision (b)(1)(C), the gang allegation.

The trial court sentenced appellant to the high term of 5 years as to count 13, doubled to 10 years under sections 1170.12 and 667.5, subdivisions (b), plus a consecutive 10-year term for the gang enhancement and 5 years under section 667, subdivision (a)(1). As to count 14, the court sentenced appellant to one-third middle term, one year, doubled under sections 1170.12 and 667.5, subdivision (b), to 2 years, to run consecutively to the term imposed as to count 13. Appellant was given custody credit of 661 days, which included 575 actual days and 86 days local conduct credit, a total of one year eight months credit.

In addition, the court ordered appellant to provide DNA, and to pay a $200 restitution fund fine, a $40 court security fee fine, and a $200 parole revocation fine. The latter fine was stayed. The court also ordered appellant to pay restitution of $9,000, jointly and severally with his accomplices. The remaining count was dismissed.

Appellant filed a timely notice of appeal and applied for a certificate of probable cause, based upon the contention that the trial court abused its discretion in not striking his prior conviction. Because the application had been signed by appellants father, instead of appellant personally, the trial court denied it without prejudice to reapply. Appellant did not renew his request for a certificate of probable cause, and none was issued.

DISCUSSION

A defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the trial court has executed and filed a certificate stating there is probable cause for the appeal. ( 1237.5; Cal. Rules of Court, rule 8.304(b).) The requirement is intended to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted. [Citation.] (People v. Buttram (2003) 30 Cal.4th 773, 790.)

Where a defendant has agreed to plead to certain charges in exchange for a maximum term (a lid) and dismissal or reduction of others, a certificate of probable cause is required to challenge the trial courts authority to impose a particular sentence within that maximum, unless the defendant reserved the right to have the issue reviewed on appeal. (People v. Shelton (2006) 37 Cal.4th 759, 769.)

An exception to the requirement of a certificate of probable cause permits an appeal from sentencing choices within the maximum, if those choices have been left to the discretion of the court in the agreement. (People v. Cuevas (2008) 44 Cal.4th 374, 377; People v. Buttram, supra, 30 Cal.4th at pp. 786, 790.) Here, appellant did not reserve any issue for appeal, and did not leave the components of the sentence to the discretion of the court. Instead, he agreed not only to a maximum sentence of 27 years, he agreed to the components of the sentence: He agreed to the high term on count 13, admitted the 1998 robbery as a prior strike, pursuant to sections 1170.12 and 667.5, subdivision (b) (the Three Strikes law), and agreed to the gang and firearm enhancements, as well as the five-year enhancement under section 667, subdivision (a)(1).

We conclude that appellant was required to obtain a certificate of probable cause. We also conclude that appellant could not have obtained a certificate on the ground stated, and his attorney was not required to assist him in reapplying, because appellant intended to challenge the imposition of a sentence enhancement to which he agreed, on the basis of a prior felony conviction which he admitted. A defendant may not challenge the validity of the plea on appeal without a certificate of probable cause. (People v. Cuevassupra, 44 Cal.4th at p. 376; People v. Shelton, supra, 37 Cal.4th at p. 769.) An attack on a stipulated term of the plea agreement is an attack on the validity of the plea. (People v. Hodges (2009) 174 Cal.App.4th 1096, 1103-1104.) Thus, the appeal must be dismissed. (Id. at p. 1112.)

Because of counsels compliance with the Wende procedure and our review of the record, we conclude appellant has received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The appeal is dismissed.

MOHR, J.^*

We concur:

RUBIN, ACTING P.J.

FLIER, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] In a separate letter to the trial court, counsel pointed out that appellant should have been given one additional custody credit. It appears that counsel is correct, and that at the time of sentencing in August 2008, the court and counsel may have forgotten to add a day to February due to the leap year. As counsel has not reported back to us, we assume the trial court has since made the correction.

^[2] All further statutory references are to the Penal Code.

^[3] Initially, the prosecutor stated that the maximum term was to be 26 years, but after the court calculated the total of the agreed components of the sentence, it came to 27 years, to which appellant agreed.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.