P. v. Davis





Filed 9/30/11 P. v. Davis CA1/1





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. SHANDON ROBERT DAVIS, Defendant and Appellant.

A131899 (Alameda County Super. Ct. No. H-48577-C)

Defendant Shandon Robert Davis appeals from a judgment of conviction entered upon a plea of nolo contendere. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues (People v. Wende (1979) 25 Cal.3d 436) and has noted areas in the record that might arguably support the appeal (Anders v. California (1967) 386 U.S. 738). Counsel has notified defendant he can file a supplemental brief with the court. No supplemental brief has been received. Upon review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND[1]
On March 8, 2009, in the early morning hours, defendant and another individual robbed the victim at gunpoint at the “Muni Lot #1 in Hayward.” After the victim had a few drinks at the Funky Monkey Bar, he walked to his car parked in the lot. The victim reported a blue Dodge Charger stopped behind him and two men exited the vehicle. One of the men pressed the barrel of a handgun to his left cheek and the second man took the victim’s gold necklace and cross pendant, and grabbed his rings. He recognized the two men from the bar. Following this robbery, the two men got back into the Dodge Charger and drove approximately 20 feet. They approached a second victim, robbed him, and drove away.[2]
On March 10, 2009, Dante Ford’s vehicle was searched and the officers located a loaded .45-caliber Smith and Wesson, a yellow metal necklace, and a yellow metal ring. Ford told the officers he was standing next to the vehicle when Zeus began robbing the victims. Eight days later, defendant was arrested at his residence. A gold necklace, similar to the one taken from the first victim was recovered from defendant’s person. Defendant, eventually identified as Zeus, “was seen on surveillance video and his CDL [California driver’s license] had been swiped the night of the robbery at the Funky Monkey Bar.” One of the victims identified defendant and Ford as the suspects who robbed him of his necklace.
An amended complaint was filed on March 20, 2009, charging defendant with two counts of second degree robbery (Pen. Code, § 211).[3] The complaint alleged defendant personally used a firearm under both counts (§§ 12022.5, subd. (a) & 12022.53, subd. (b)). It was further alleged defendant had suffered four prior convictions for petty theft with a prior (§§ 484, subd. (a)/666), residential burglary (§§ 459/ 460, subd. (a)), receiving stolen property (§ 496, subd. (a)), and attempted residential burglary (§§ 459, 460, subd. (a), 664), and the residential burglary and attempted residential burglary convictions brought defendant within the purview of the “Three Strikes Law.”
Pursuant to a negotiated disposition, on March 23, 2010, defendant waived his right to a preliminary hearing and pled nolo contendere to the first count of robbery and admitted the personal use of a firearm clause with the understanding he would be sentenced to the upper term of five years for the robbery, plus 10 years consecutive for personal use of a firearm, for a total of 15 years. The court struck the prior convictions as part of the negotiated plea. A subsequent motion filed by defendant to strike his prior conviction for residential burglary on the ground he was not informed his guilty plea would result in a strike conviction was denied by the trial court.
On March 1, 2011, defendant was sentenced to 15 years in state prison. The court awarded 714 actual custody credits, plus 107 conduct credits for a total of 821 days. The court imposed a number of fines and fees reserving the issue of restitution to the victims.
DISCUSSION
We have reviewed the record on appeal. By entering a plea of nolo contendere, defendant has admitted the sufficiency of the evidence establishing the crime, and therefore is not entitled to review of any issue that goes to the question of whether he is guilty or not guilty. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
Defendant requested a certificate of probable cause to raise on appeal the issue there was no factual basis for his admission he personally used a firearm during the commission of the robbery. The court denied the certificate. The denial of a request for a certificate of probable is not reviewable on direct appeal, but must be challenged through petition for a writ of mandate. (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) Defendant in fact filed a writ of mandate asking this court to issue an alternative writ ordering the trial court to issue a certificate of probable cause pursuant to section 1237.5. We denied the writ of mandate on August 11, 2011. (Davis v. Superior Court, A132829.) Without a certificate of probable cause, defendant cannot contest the validity of his plea; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress or issues relating to matters arising after the plea was entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)
Because no certificate of probable cause has been filed, the only issues pertinent to this appeal are defendant’s sentence and denial of his motion to strike his prior conviction for residential burglary. (Cal. Rules of Court, rule 8.304(b)(4)(B).)
The trial court correctly characterized defendant’s motion to strike his prior residential burglary conviction as an impermissible collateral attack on the validity of his conviction. Collateral challenges to prior convictions are limited to claims a defendant was denied the assistance of counsel or he was not given proper Boykin-Tahl[4] advisements in connection with a guilty plea. (People v. Allen (1999) 21 Cal.4th 424, 429, 442–443.) Such is not the case here because the failure to inform defendant his guilty plea to residential burglary would subject him to the three strikes law does not implicate denial of assistance of counsel or Boykin-Tahl advisements.
Defendant was represented by counsel throughout the proceedings.
We find no meritorious sentencing issues requiring reversal of the judgment.
No other briefing is required on any other postplea issues. The judgment is affirmed.





_________________________
Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.


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