P. v. Hoover























Filed 7/9/13 P.
v. Hoover CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY HOOVER II, Defendant and Appellant.

E054318 (Super.Ct.No. RIF149867) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. James T. Warren, Judge. (Retired judge of the Riverside Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed.

Dennis
L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Mark Anthony Hoover II is
serving a five-year prison term after pleading guilty a second time to firearm
charges with a strike prior and a prison term prior. He challenges the trial court’s denial of his
Romerohref="#_ftn1" name="_ftnref1" title="">^[1]> motion,
made after he entered into the plea agreement, which specifically set forth the
sentence that was to be imposed. The
People argue the defendant’s appeal should be dismissed because he did not
obtain a certificate of probable cause
from the sentencing court. As discussed
below, we agree with the People and so dismiss the appeal.

>Facts
and Procedure

On
April 10, 2009, defendant was a felon and carried a loaded firearm in a public
place.href="#_ftn2" name="_ftnref2" title="">^[2] On April 28, 2009, defendant pled guilty to
being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and
being a gang member in possession of a loaded firearm (§ 12031, subd.
(a)(2)(C)).href="#_ftn3" name="_ftnref3"
title="">^[3] Defendant also admitted that he had a prior
strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (c)(1)) and
a prior prison term (§ 667.5, subd. (b)).

On
December 23, 2009, the superior court sentenced defendant to the agreed-upon
term of five years in prison, consisting of the midterm of two years for the
felon-in-possession conviction, doubled for the strike prior, plus one year for
the prison prior.

Defendant
appealed, and on November 24, 2010, this court upheld the conviction and
sentence. Subsequently, the Riverside
County Superior Court granted defendant’s petition for habeas corpus on the
ground that the sentencing court had not advised defendant that he was pleading
guilty to a further strike. Defendant
was allowed to withdraw his plea.

On
May 12, 2011, defendant entered a new guilty plea, per a new plea agreement
with the People, in which he again pleaded guilty to being a felon in
possession of a firearm and admitted he had both a prior strike and a prison
term prior. The printed portion of the href="http://www.fearnotlaw.com/">written plea agreement specified that
“The custody term will be”
and in the space provided was handwritten “MT X 2 + PP = 5 yrs,” which means
the midterm of two years, doubled for the strike, plus one year for the prison
prior, for a total of five years. The
bolding and underlining of the phrase “will be” was part of the plea form. Sentencing was set for June 21, 2011.

On June 7, 2011,
defendant filed a Romero motion in
which he asked the court to dismiss his strike prior in the interest of
justice. At the sentencing hearing held
on June 21, 2011, the court denied the Romero
motion and proceeded to sentence defendant, as agreed, to five years in prison,
consisting of the middle term of two years for being a felon in possession,
doubled to four years for the strike prior, plus one year for the prison prior. This appeal followed. The trial court denied defendant’s request
for a certificate of probable cause.

Discussion


Defendant argues
the trial court erred when it denied his Romero
motion. However, the People argue, and
we agree, that this appeal must be dismissed because defendant did not obtain a
certificate of probable cause as required.


Only two types of
issues may be raised on appeal following entry of a guilty plea without
issuance of a certificate of probable
cause under section 1237.5 and rule 31(d):
(1) issues concerning the validity of a search or seizure, and (2)
issues concerning proceedings after the entry of the plea to determine the
degree of the crime and the punishment for the crime. (People
v. Panizzon (1996) 13 Cal.4th 68, 74.)
Issues that go to the validity of the plea itself require compliance
with section 1237.5 and rule 31(d). (>Id. at p. 76.)

Defendant contends
his appeal raises an issue concerning proceedings after the entry of the plea
and is therefore cognizable on appeal despite his failure to obtain a
certificate of probable cause. Defendant
argues that the trial court abused its discretion by refusing to strike his
prior conviction under Romero. As to the appealability issue, defendant
argues that this decision by the trial court to deny his Romero motion involved an individualized discretionary sentencing
decision which, under People v. Buttram
(2003) 30 Cal.4th 773 (Buttram) is
appealable without a certificate of probable cause.

In> Buttram, the plea form specified a
maximum term but left to the discretion of the trial court the exact prison
term to be imposed. Our Supreme Court
held that “a certificate of probable cause is not required to challenge the
exercise of individualized sentencing discretion within an agreed maximum
sentence. Such an agreement, by its
nature, contemplates that the court will choose from among a range of
permissible sentences within the maximum, and that abuses of this discretionary
sentencing authority will be reviewable on appeal, as they would otherwise
be. Accordingly, such appellate claims
do not constitute an attack on the validity of the plea, for which a
certificate is necessary.” (>Id. at p. 790.) The present case differs from >Buttram in one key respect—the plea form
here left no discretionary sentencing authority to be exercised by the trial
court after the plea. Rather, defendant
and the People specifically agreed that defendant would be sentenced to five
years in prison, no more and no less, period.
There was no discretionary sentencing authority left for the trial court
to exercise. Defendant’s filing of a >Romero motion after entering his guilty
plea and agreeing to a specific sentence did not change this fact.

We conclude
defendant’s contention of Romero
error is thus barred under all of the authorities cited above.

>Disposition


The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

RAMIREZ

P. J.





We concur:



HOLLENHORST

J.



McKINSTER

J.