P. v. Dew
Filed 4/11/13 P. v. Dew CA1/5
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opinion has not been certified for publication or ordered published for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
FIVE
and Respondent,
and Appellant.
A136473
(
Super.
SC074181A)
On
August 5, 2010, pursuant to a plea bargain, Quentin Lee Dew entered no
contest pleas to charges of second degree
robbery and attempted grand theft in Superior Court, San Mateo County, case
number SC071279A (Case One). (Pen.
Code, §§ 212.5, subd. (c), 487, subd. (a).)
constituted a violent felony conviction (§ 667.5, subd. (c)(9)) and
admitted a criminal street gang
enhancement associated with the robbery count.
Dew entered his pleas and admissions on the understanding that the court
would strike the punishment attributable to the gang enhancement and that he
would not receive a state prison
sentence of more than two years. Dew’s
counsel stipulated there was a factual basis for his no contest plea and
admission. On the prosecution’s motion,
the court then dismissed other charges against Dew in accordance with the
negotiated plea.
On
September 10, 2010, the trial court suspended execution of a 13-year state
prison sentence and placed Dew on probation for a period of four years.
county jail and, among other conditions, to obey all laws. The court advised him that if he were to
violate the terms of his probation, he would be sent to state prison for 13
years. Dew accepted these conditions of
probation.
On
July 18, 2011, in superior court case number SC074181A (Case Two),
the San Mateo County District Attorney charged Dew with second degree robbery
and participating in a felony street gang.
(Pen. Code, §§ 186.22, subd. (a), 212.5, subd. (c).) The criminal complaint also alleged a
criminal street gang enhancement related to the robbery count and an
enhancement for personal use of a firearm.
(Pen. Code, §§ 186.22, subd. (b)(1), 12022.53,
subd. (e).) The following day, the
probation department filed a probation violation notice in Case One, and on
July 20, 2011, the court summarily revoked Dew’s probation in that case.
On
September 2, 2011, the prosecutor filed an information in Case Two
charging Dew with one count of felony second
degree robbery (§ 212.5, subd. (c)), one felony count of assault
with a firearm (§ 245, subd. (a)(2)), and one felony count of
actively participating in a criminal street gang (§ 186.22,
subd. (a)). The information also
alleged a number of enhancements and probation ineligibility clauses. Dew initially entered a plea of not guilty to
all three counts and denied all special allegations set forth in the information.
On
May 7, 2012, Dew pleaded no contest in Case Two to one felony count of
second degree robbery and one felony count of actively participating in a
criminal street gang. He admitted the
robbery constituted a violent felony (§ 667.5, subd. (c)(9)) and that
the gang participation offense constituted a serious felony (§ 1192.7,
subd. (c)(28)). He entered these
pleas and admissions with the understanding that the previously suspended state
prison sentence in Case One would be executed and that his sentence in Case Two
would run concurrent to the sentence in the prior case. Dew waived his rights under
and In re Tahl (1969) 1 Cal.3d 122,
and his counsel stipulated to a factual basis for the plea. On the prosecutor’s motion, the court then
dismissed the balance of the information.
Dew
then admitted that the robbery conviction in Case Two was a violation of the
condition of his probation in Case One that he obey all laws. He made this admission with the understanding
that the court would execute the previously suspended 13-year sentence in Case
One and after waiving his right to a
contested hearing on the probation violation allegation. The court then revoked Dew’s probation.
On
June 29, 2012, Dew asked the court to appoint counsel to investigate
filing a motion to withdraw his plea and his admission of the probation
violation. The court appointed counsel
for that purpose on August 3, 2012.
At the sentencing hearing on August 31, 2012, newly appointed
counsel informed the court that no motion to withdraw the plea would be filed.
The
trial court denied probation and ordered execution of the previously suspended
13-year prison sentence in Case One. It
rejected defense counsel’s request to terminate probation in Case One and
impose a lesser state prison sentence.
The court imposed a concurrent state
prison sentence of five years in Case Two, comprised of the middle term of
three years for the second degree robbery and the middle term of two years for
the criminal street gang participation conviction. The court also imposed restitution fines of
$240 (§ 1202.4, subd. (b)), a $160 court operations assessment
(§ 1465.8), a $120 criminal conviction assessment (Gov. Code,
§ 70373), and a $240 parole/community supervision fine (§ 1202.45)
which it suspended unless community supervision were revoked.
Dew
filed timely notices of appeal from
the sentences in both cases on September 6, 2012. There is nothing in the record indicating
that Dew sought issuance of a certificate of probable cause under
section 1237.5. (See Cal. Rules of
Court, rule 8.304(b)(1).) On
November 5, 2012, we ordered counsel appointed to represent Dew in this
appeal.
On
February 22, 2013, appointed counsel submitted a brief pursuant to
certifying that he has been unable to identify any issues for appellate
review. Counsel has also submitted a
declaration affirming that he has advised Dew of his right to file a
supplemental brief raising any points which he wishes to call to the court’s
attention. No
Discussion
As
required, we have independently reviewed the entire record and found no
arguable issues. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.)
In
addition, Dew’s pleas of no contest in Cases One and Two and his admission of a
probation violation restrict our review to grounds that (1) arose after the
pleas and admission and (2) do not affect their validity. (§ 1237.5; Cal. Rules of Court,
rule 8.304(b)(1), (4)(B); see People
v. Billetts (1979) 89 Cal.App.3d 302, 308-309.) Moreover, since Dew did not appeal from the
September 2010 order granting probation, and imposing but suspending execution
of sentence in Case One, that sentence is final. (People
v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [where defendant allows time
for appeal to lapse during probationary period, sentence becomes final and
unappealable].)
In
Case Two, Dew received terms of imprisonment authorized by statute. (See § 186.22, subd. (a)
[punishment for crime of participating in criminal street gang]; § 213,
subd. (a)(2) [punishment for second degree robbery].) In any event, because he pleaded no contest
to the charges pursuant to a negotiated plea agreement, we may not consider any
attack on the legality of his sentence in the absence of a certificate of
probable cause. (See
384.)
The
revocation hearing in Case One complied with the due process and procedural
requirements enunciated in People v.
Vickers (1972) 8 Cal.3d 451. Dew was
represented at all times by competent counsel.
The court’s decision to revoke his probation is supported by substantial
evidence. (E.g., People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.)
Disposition
The
judgment is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
name="_ftn1" title="">[1]
All undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2]
The suspended sentence included the middle term of three years for the robbery
conviction, a consecutive term of 10 years for the criminal street gang
enhancement, and a concurrent term of eight months for the attempted grand
theft conviction.
