P. v. Simpson

 

 

 

 

 

 

 

Filed 9/16/13  P. v. Simpson CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Shasta)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   LUCAS EUGENE SIMPSON,                           Defendant and Appellant.

C071164   (Super. Ct. No. 11F5308)

 

 

 

 

            Defendant Lucas Eugene Simpson
pleaded no contest to attempted first
degree robbery and assault with a
firearm.  He also admitted
allegations that he acted in concert with two or more persons and that he was
armed with a firearm in the commission of the offense.  The trial court ultimately sentenced defendant
to seven years four months in prison. 

            Defendant now contends (1) he must
be resentenced because the attempted robbery in concert did not occur within an
inhabited dwelling as required by Penal Code section 213, subdivision (a)(1)(A)href="#_ftn1" name="_ftnref1" title="">[1]; and (2) if we conclude his first contention
is forfeited, his trial counsel was ineffective for failing to preserve the
issue on appeal.

            We conclude (1) defendant’s first
contention is not cognizable on appeal, and (2) as for his second contention,
he has not established that his trial counsel was deficient.

            We will affirm the judgment.

BACKGROUND

            Defendant, along with Michael
Johnson, Chane Finch and Michael Houchins, planned to steal medical marijuana
from Michael High’s home.  On the night
of the offense, High was at home with two visitors, Amanda Baxter and Isabella
Vasquez.  Houchins went to High’s
residence ostensibly to set up a drug deal, and texted his cohorts when he
thought it was a good time to begin the crime. 


            When dogs started barking, High and
Vasquez went outside to investigate. 
They were met by defendant, Johnson, and Finch, who were armed, dressed
in tactical gear, and portraying themselves as law enforcement officers serving
a warrant.  High thought they were not
law enforcement officers and fought with two of them.  The third offender went inside the house,
grabbed Baxter, ordered her outside, and hit her on the head.  High eventually fought off the offenders, but
in the process he was fired upon and stabbed, sustaining a ruptured spleen and
punctured diaphragm. 

            After the href="http://www.fearnotlaw.com/">preliminary hearing, defendant filed a
motion to set aside the information pursuant to section 995.  During oral argument on the motion, defense
counsel added a new contention:  that the
in concert enhancement allegation applied only to completed robberies and
therefore did not apply to attempted robbery as a matter of law.  The trial court continued the hearing to
allow the prosecutor the opportunity to address the issue.  At the continued hearing, argument was
confined to whether the in concert enhancement allegation applied to attempted
first degree robberies.  The trial court
rejected the contention and denied the motion. 


            Defendant ultimately pleaded no
contest to attempted first degree robbery (§§ 664/211) and assault with a
firearm (§ 245, subd. (a)(2)); he also admitted allegations that he acted
in concert with two or more persons (§ 213, subd. (a)(1)(A)) and that he
was armed with a firearm in the commission of the offense (§ 12022.5,
subd. (a)). 

            The change of plea form stated the
disposition of defendant’s no contest plea as follows:  “Defendant will receive a 8.5 yr prison
sentence.  Defendant reserves his right
to appeal the issue of the 213(a)(1)(A) applying to the attempt.”  At the plea colloquy, the trial court asked
defendant:  “You also understand that you
will receive a stipulated term of eight years, six months in state prison, but
that you are reserving your right to appeal the issue of whether the
enhancement pursuant to Penal Code Section 213(a)(1)([A]) applies to attempted
robbery.”  Defendant affirmed that he
understood those terms and then entered his plea. 

            The trial court sentenced defendant
to the stipulated term of eight years six months in state prison.  But pursuant to an agreement with the People,
defendant’s sentence was later modified to seven years four months after he
testified against one of the other offenders. 


            Defendant’s notice of appeal stated
“he reserved his right to appeal on the issue of whether Penal Code section
213(a)(1)(A) applied to the crimes for which he pled.”  Trial counsel also prepared a request for a
certificate of probable cause, which stated that the parties and trial court
understood defendant’s plea preserved his right to “appeal the issue of whether
the Penal Code section 213(a)(1)(A) enhancement applied to his robbery
offense.”  The trial court granted the
certificate. 

DISCUSSION

I

            Defendant contends he must be
resentenced because the attempted robbery in concert did not occur within an
inhabited dwelling as required by section 213, subdivision (a)(1)(A). 

            Defendant points out that first
degree robbery and the in concert enhancement for first degree robbery -- which
imposes a sentencing triad of three, six, or nine years rather than a
sentencing triad of three, four, or six years (§ 213, subds. (a)(1)(A)
& (a)(1)(B)) -- applies to a defendant who commits the robbery “within an
inhabited dwelling house.”  (§ 213,
subd. (a)(1)(A); 212.5, subd. (a).) 
Defendant argues that because the victim of the attempted robbery,
Michael High, was never inside the
house during the crime, the in concert enhancement cannot apply. 

            But “[i]ssues concerning the
defendant's guilt or innocence are not cognizable on appeal from a guilty plea.  [Citations.] 
By admitting guilt a defendant waives an appellate challenge to the
sufficiency of the evidence of guilt. 
[Citations.]  The same
restrictions on appellate issues apply after a no contest plea [citations] and
the admission of an enhancement [citation].” 
(People v. Voit (2011)
200 Cal.App.4th 1353, 1364.) 
Because defendant attacks whether the facts support the in concert
enhancement, his claim is not cognizable on the appeal from his no contest
plea.href="#_ftn2" name="_ftnref2"
title="">[2]

            Defendant argues he preserved his
right to appeal this issue, pointing to his express reservation of the right to
appeal the applicability of the in concert enhancement to attempted
robbery.  It is true that we can address
an attack on a guilty or no contest plea or the events taking place before the
plea when the defendant filed in the trial court a statement showing reasonable
grounds going to the legality of the proceedings and the trial court filed a
certificate of probable cause. 
(§ 1237.5, subds. (a) & (b).) 
But obtaining a certificate of
probable cause does not make cognizable issues that have been waived by a
no contest plea.  (People v. Hunter (2002) 100 Cal.App.4th 37, 41-42.)  “What may not be appealed are ‘issues
relating to [a defendant’s] guilt or to the procedure which would otherwise be
required to establish his guilt.’ 
[Citation]  What may be appealed
are claims, ‘which, if true, would preclude the state from prosecuting [a
defendant] despite his guilt.’ 
[Citation.]”  (>People v. Halstead (1985)
175 Cal.App.3d 772, 778, fn. omitted.) 
This rule does not restrict us to review of the specific issues listed
within a certificate of probable cause, but the “filing [of] a certificate
cannot expand the scope of review to include a noncognizable issue.  [Citations.]” 
(People v. Hoffard (1995)
10 Cal.4th 1170, 1178.)

II

            Defendant also contends that if we
conclude his first contention is forfeited, his trial counsel was ineffective
for failing to preserve the issue on appeal. 
But we concluded his first contention is not cognizable on appeal.  In any event, defendant has not established
that his trial counsel was deficient on this record.  (People
v. Anderson (2001) 25 Cal.4th 543, 587 [failure to make a futile act
is not ineffective assistance of counsel].) 




 

Although defendant’s
first contention is not cognizable, we affirm the judgment rather than dismiss
the appeal because the ineffective assistance claim is cognizable on appeal.

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                                           MAURO                       , J.

 

 

I concur:

 

 

                       HULL                         , Acting P. J.

 

 

          I concur fully in the opinion of my
colleagues.  However, I write separately
to emphasize the inappropriateness of the trial court’s action here.  It is improper for a court to advise a
defendant when pleading that he or she may reserve the right to appeal an issue
that is not cognizable on appeal. 
Unfortunately, in addition to the court’s oral statement, this language
is also included on the written plea form. 
Nor should counsel acquiesce in this practice. 

          As the opinion makes clear, a false
judicial promise of appealability cannot make it so.

 

 

                       ROBIE                        , J.