P. v. Akkerman
Filed 2/7/12 P. v. Akkerman CA2/6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID ROBERT AKKERMAN,
Defendant and Appellant.
B231952
(Los Angeles
County
Super. Ct.
No. LA065844)
APPEAL
from a judgment of the Superior Court
of
County. Karen J.
Nudell, Judge. Reversed and remanded
with instructions.
Ann
Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney
General, for Plaintiff and Respondent.
* *
* * * * * * * *
Defendant David Robert Akkerman was charged by information with one
count of petty theft with a prior theft
conviction (Pen. Code, § 666), as well as prior offense allegations (Pen.
Code, § 1203, subd. (e)(4)). Defendant
entered a no contest plea, admitting one prior theft conviction (Pen. Code, §
484, subd. (a)). The factual basis for
the plea is as follows (as established in defendant’s probation report): On August 17, 2010, at a Target store in
Los Angeles County, store security personnel observed defendant select a piece
of luggage and fraudulently return it with an old receipt for a cash refund of
$54.86.
Defendant was
sentenced on September 8, 2010,
to two years in prison, the execution of his sentence was suspended, and he was
placed on three years’ formal probation with one year in jail. At the time of the offense and sentencing,
Penal Code section 666 (hereafter section 666) required proof of only one prior
theft conviction. However, on September 9, 2010
(just one day after defendant was sentenced) the statute was amended to require
proof of three prior theft convictions before the enhanced penalty would
apply. (See former § 666, amended
by Stats. 2010, ch. 219, § 15.) On
March 9, 2011, defendant’s
motion to withdraw his plea on the basis of the amendment to section 666 was
denied. Defendant admitted to violating
his probation, and his suspended sentence was imposed. Defendant filed a notice of appeal
challenging the trial court’s ruling on his motion to withdraw his plea, and
asked the court to issue a certificate of
probable cause. His request was
denied. An amended notice of appeal was
filed on May 5, 2011,
purporting to appeal postplea matters not requiring a certificate of probable
cause, and a renewed request for a certificate of probable cause was made to
the trial court, which was again denied.
Defendant’s
appellate counsel filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436
(Wende).) The brief included a declaration that counsel
reviewed the record and sent a letter to defendant explaining her evaluation of
the record. Counsel further declared
that she advised defendant of his right, under Wende, to submit a supplemental brief. On September 26, 2011, this court sent defendant
notice at his last known address of Wasco State Prison, as well as an alternate
address identified in counsel’s Wende
brief, advising him that he had 30 days to personally submit any contentions or
issues that he wished to raise on appeal.
The notice sent to Wasco was returned because defendant had been
paroled. The letter sent to the
alternate address was not returned. No
supplemental brief from defendant was received.
Even if defendant
did not receive the notices sent to him, it was his obligation to report
changes of address while his appeal was pending. (See Cal. Rules of Court, rule 8.32.)
On January 10,
2012, we asked the parties to brief the following issues: “(1) What is the effect of the September
2010 amendment to . . . section 666 on David Akkerman’s petty theft
with a prior conviction and sentence (People v. Vinson
(2011) 193 Cal.App.4th 1190); and
[¶] (2) What effect, if any, does
the failure to procure a certificate of probable cause have on this court’s
resolution of this appeal? (Pen. Code, §
1237.5.)†Defendant’s appointed
attorney and respondent filed supplemental letter briefs addressing our
inquiry.
The
parties agree the amendment to section 666 applies retroactively (
1199-1200), and because defendant’s judgment was not yet final at the time of
the amendment, the amendment applies to him.
Nevertheless, the parties contend the failure to obtain a certificate of
probable cause prevents defendant from obtaining the benefits of the
amendment. (See, e.g., People
v. Borland (1996) 50 Cal.App.4th 124, 127, 129-130 [a defendant cannot
challenge the factual basis for a plea without first obtaining a certificate of
probable cause].) We agree that the amendment to section 666 applies
retroactively. (People v. Vinson, at pp.
1199-1200.) We disagree that a
certificate of probable cause is required, because the appeal does not
challenge the validity of the defendant’s plea, but is based on grounds
occurring after entry of the plea (the amendment to section 666). (See Pen. Code, 1237.5; California Rules of
Court, rule 8.304(b)(4).)
DISPOSITION
The judgment is reversed and
the matter is remanded to the trial court with instructions to conduct further
proceedings as appropriate in light of the retroactive operation of section
666, as amended effective September 9, 2010.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.
