P. v. Crumwell



















Filed 2/25/13 P. v. Crumwell CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE






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THE PEOPLE, Plaintiff and Respondent, v. JOHN CRAFT CRUMWELL, Defendant and Appellant.

B243279 (Los Angeles County Super. Ct. No. BA395009)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Ronald H. Rose, Judge.
Affirmed.

Richard L.
Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No
appearance for Plaintiff and Respondent.



______________________________



On June
20, 2012, defendant
and appellant John Craft Crumwell entered a no contest plea to a violation of
Health and Safety Code section 11352, subdivision (a), and admitted suffering a
prior conviction under the three strikes law (Pen. Code, §§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)). Pursuant
to a case settlement agreement between defendant and the prosecution, the trial
court imposed an eight-year sentence, consisting of the midterm of four years,
doubled under the three strikes law.

Defendant filed a notice of appeal
without obtaining a certificate of
probable cause. His notice of appeal
states the appeal is “exclusively based on grounds that arose after entry of
the plea and do not affect the plea’s validity.”

This court appointed href="http://www.fearnotlaw.com/">counsel to represent defendant on
appeal. On January 11, 2013, appointed counsel filed a brief raising no
issues. Counsel requested this court to
independently review the appellate record for arguable contentions under People
v. Wende (1979) 25 Cal.3d 436.
Defendant was advised by letter of his right to file a supplemental
brief.

Defendant filed a href="http://www.mcmillanlaw.com/">supplemental brief with this court on February
11, 2013, along
with a motion to augment the record with unreported, off the record
proceedings, which occurred on June 5, and June 20, 2012.
Defendant raises the following issues on appeal in his supplemental
brief: (1) the burden was on the prosecution to produce
admissible evidence of his prior convictions under the three strikes law, even
though defendant admitted suffering one of the convictions as part of his plea
agreement; (2) defense counsel provided
ineffective assistance of counsel because defendant informed counsel he had not
been convicted of the alleged prior offenses; (3) the trial court’s participation in the plea
discussions led defendant to believe he had to plead or the court would
sentence him to 25 years to life in prison; (4)
denial of defendant’s motion to discharge defense counsel on May 30,
2012, deprived defendant of the right to counsel; (5) defense counsel was ineffective because he
failed to make any challenge to the prior convictions; (6) defense counsel should have made a href="http://www.fearnotlaw.com/">motion to dismiss under section 995; and
(7) defendant was not properly advised
of the consequences of his plea in 1992, and had he known of the dire
consequences, he would not have entered a plea, although the strike priors “are
not my convictions.”

We conclude defendant’s claims are
barred by the absence of a certificate of probable cause. Despite the language of his notice of appeal,
none of defendant’s arguments pertain to grounds that arose after the plea he
entered on June 20, 2012. All
of his contentions challenge the validity of the plea and are therefore not
cognizable in this appeal.

“Ordinarily, a certificate
of probable cause is required to
appeal from a plea of guilty or
nolo contendere (no contest). ([Pen.
Code,] § 1237.5.) However, a name="SR;1191">defendant need not obtain
a certificate of probable name="SR;1199">cause if the appeal is based on
‘[g]rounds that arose after entry of the plea and do not
affect the plea’s validity.’ (Cal. Rules
of Court, rule 8.304(b)(4)(B).)” (People
v. Caravajal (2007) 157 Cal.App.4th 1483, 1486.) Our Supreme Court has “long recognized two
exceptions to its requirement of a certificate of name="SR;3386">probable cause. First, a defendant may
appeal from a ruling involving a search and seizure issue without name="SR;3404">obtaining a certificate, because an
appeal from such a ruling explicitly is authorized by section 1538.5 name="sp_7047_337">name="citeas((Cite_as:_47_Cal.4th_668,_*677,_2">‘notwithstanding the fact
that the judgment of conviction is predicated upon a plea
of guilty.’ ([Pen.
Code,] § 1538.5, subd. (m); see People v. Kaanehe (1977) 19 Cal.3d 1,
8.) Second, a defendant
is ‘not required to comply with the provisions of [Penal
Code] section 1237.5 where . . . he is not attempting to name="SR;3481">challenge the validity of his plea of name="SR;3488">guilty but is asserting only that errors occurred in the
subsequent adversary hearings conducted by the trial court for the purpose of
determining the degree of the crime and the penalty to be imposed.’ (People v. Ward (1967) 66 Cal.2d 571,
574 (Ward).)” (People
v. Johnson (2009) 47 Cal.4th 668, 677, fn. omitted.)

The claims raised by defendant in
his supplemental brief each arose
prior to his plea and are not reviewable in the absence of a certificate of
probable cause. (People v. Stubbs
(1998) 61 Cal.App.4th 243, 244-245.)
Because the motion to augment the record on appeal also goes to matters
occurring prior to the plea and relate to the validity of the plea, the href="http://www.fearnotlaw.com/">motion to augment is denied. We have completed our independent review of
the record and find no arguable appellate contentions. The judgment is affirmed. (Smith v. Robbins
(2000) 528 U.S. 259.)





KRIEGLER,
J.





We concur:





TURNER,
P. J.





MOSK,
J.