Filed 4/24/18 P. v. Almeda 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY MICHAEL ALMEDA,

Defendant and Appellant.
C083635

(Super. Ct. No. 62139118B)





Defendant Anthony Michael Almeda contends the trial court erred by doubling his sentence based on a strike prior because, even though he was sentenced pursuant to a plea bargain, there was insufficient evidence to determine whether the strike prior qualified as a strike. He also contends his trial counsel rendered ineffective assistance by failing to challenge the validity of the strike and by failing to include in the plea agreement the option to file a motion to dismiss the strike if the court found it to be valid.
We disagree with defendant’s contentions and affirm the judgment. Defendant cannot challenge the strike prior’s validity or his trial counsel’s decision not to include in the plea a right to seek dismissal of the strike because he did not obtain a certificate of probable cause. He also has not shown his trial counsel rendered ineffective assistance by deciding not to challenge the strike’s validity.
FACTS AND PROCEEDINGS
Defendant pleaded no contest to receiving a stolen vehicle (Pen. Code, § 496d; unless otherwise set forth, statutory section references that follow are to the Penal Code), and he admitted a strike prior (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), a prior prison felony (§ 667.5, subd. (b)), and a prior conviction for vehicle theft (§ 666.5). Pursuant to the plea agreement, defendant would receive an aggregate prison term of five years: the low term of two years, doubled for the strike, plus one year for the prior prison felony. All other charges--receipt of a stolen vehicle (Veh. Code, § 10851), possession of burglar’s tools (§ 466), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and other enhancements for prior prison felonies--would be dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The trial court conditionally accepted the plea.
The information alleged the strike prior was a 1996 conviction for assault with a deadly weapon. (§ 245, subd. (a)(1).) When defendant entered his no contest plea, the parties agreed defense counsel would be able to present evidence at sentencing, if it existed, showing the strike prior was not a serious felony and did not qualify as a strike.
At the first sentencing hearing, defense counsel announced defendant wanted to withdraw his plea. The trial court appointed conflict counsel to evaluate the request. At the next hearing, however, conflict counsel announced there would be no motion to withdraw the plea.
At sentencing, the trial court asked defense counsel if he was going to challenge the strike prior. Counsel said he would not. He stated, “I have not written a challenge. I provided a letter that my client provided me this morning. I’ve been in trial until last week. When we originally did the plea, there was a question of whether or not the Strike was valid. I did clear up a misunderstanding, the Strike is valid. [¶] I do note that [defendant] did bring up the issue of the age of the Strike, which is approximately 20 years old, I believe, from 1996. I have not addressed that. I also note that the [sic] under the terms of the plea agreement that we originally did, it is for the lowest term possible for what he pled to, so I did provide that. It was an unplanned question of, essentially, a Romero motion [(People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)], and we are prepared to submit on everything to the Court today.”
The trial court noted the plea agreement did not contemplate a Romero motion. When it explained to defense counsel that, unlike a challenge to a strike’s validity, a Romero motion was a request for the court to exercise its discretion to dismiss a valid strike, counsel stated, “That was not contemplated. I just raised the question of it based upon my client’s letter to the Court that I received this morning.”
The trial court asked the prosecutor if, when she agreed to the plea bargain, she relied upon the fact defendant would not file a Romero motion. The prosecutor said she did. The court then asked defense counsel whether defendant understood that even if his motion to withdraw had been successful, the People would have been able to prosecute the entire case against him. Counsel said defendant did.
The trial court explained it could not entertain a Romero motion because it was bound by the terms of the plea agreement. It nonetheless read defendant’s letter, and then said, “I read the letter, but once again, I’m bound by the agreement between the parties here.” Defense counsel responded, “And we are not asking that the agreement be discarded at this point. We are prepared to go forward with sentencing. We thank the Court for reviewing [defendant’s] letter.”
The trial court sentenced defendant according to the terms of the plea agreement.
Defendant filed three petitions for habeas corpus; two in the trial court and one here. (In re Almeda (Dec. 2, 2016, C083468) [nonpub. opn.].) All were denied.
He appeals from the judgment. In his notice of appeal, he asserted the appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. He did not seek a certificate of probable cause.
DISCUSSION
I
Validity of the Strike Prior
Defendant contends the trial court erroneously doubled his principal term because there was insufficient evidence to establish the strike prior actually qualified as a strike. The Attorney General contends defendant is barred from raising this claim on appeal pursuant to section 1237.5 because it attacks the sufficiency of the evidence. We hold defendant cannot raise the claim on appeal because he did not seek or obtain a certificate of probable cause. Because the law is clear on this point, we decide the issue without seeking further briefing. However, any aggrieved party may petition for rehearing. (Gov. Code, § 68081.)
“Penal Code section 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766; § 1237.5, subd. (b); see also People v. Buttram (2003) 30 Cal.4th 773, 790 [the purpose of § 1237.5 is “to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted”].) “Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379; see also Cal. Rules of Court, rule 8.304(b)(4)(B).)
“In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).)
“Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement. [Citations.]” (People v. Johnson (2009) 47 Cal.4th 668, 678; see also People v. Sem (2014) 229 Cal.App.4th 1176, 1187 [“A challenge to any part of the sentence to which the defendant agreed in a plea bargain is regarded as a challenge to the validity of the plea”].)
Defendant’s challenge to his sentence constitutes a challenge to the validity of his plea because his admission of the prior strike was “part and parcel of the plea agreement he negotiated with the People.” (Panizzon, supra, 13 Cal.4th at p. 78.) As a result, defendant was required to obtain a certificate of probable cause in order to challenge the validity of the strike on appeal.
“ ‘ “When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.” ’ (Panizzon, supra, 13 Cal.4th at p. 80; see People v. Hester (2000) 22 Cal.4th 290, 295 [‘defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process’].)” (People v. Cuevas, supra, 44 Cal.4th at p. 383.) In this case, defendant entered a plea of no contest and admitted a prior strike allegation in exchange for certain benefits, including the dismissal of other charges and enhancements and a reduction in his overall exposure to prison. “ ‘Defendant’s attack on the legality of his maximum sentence is an effort to unilaterally improve, and thus alter, the terms of that which was agreed and thus should not be permitted without a certificate of probable cause.’ ” (Ibid.; see also People v. Arwood (1985) 165 Cal.App.3d 167, 172, disagreed with on another ground in Panizzon, supra, 13 Cal.4th at p. 89, fn. 15 [in appeal from no contest plea and admission of a prior felony conviction under § 667, claim on appeal that prior conviction did not qualify as a “serious felony” under § 667 required a certificate of probable cause as it challenged the validity of the plea].)
We recognize that at the time of his plea, defendant’s counsel noted that defendant might be presenting evidence that the “strike prior” did not qualify as a strike. At sentencing, counsel stated that he had abandoned that argument as being without merit. While defendant may have hoped he could successfully challenge the strike prior at sentencing there apparently was no basis for that challenge. While perhaps disappointing to defendant, that does not change the fact that his claim on appeal challenging the strike prior is a challenge to his plea which he has brought to us without a certificate of probable cause.
The mere fact defendant stated in his notice of appeal that he was appealing on noncertificate grounds “does not supply the absence of a statement of certificate grounds and a certificate of probable cause. [Citations.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097.) Because defendant did not obtain a certificate of probable cause, we may not address his claim challenging the validity of the strike prior.
II
Ineffective Assistance of Counsel
Defendant contends defense counsel rendered ineffective assistance by not challenging the validity of the strike and by failing to include in the plea agreement an option to file a Romero motion. We disagree with his contentions.
We address his last contention first. A claim that counsel rendered ineffective assistance before or during the plea cannot be raised on appeal from a judgment based on a plea of guilty or no contest unless the defendant obtains a certificate of probable cause. (In re Brown (1973) 9 Cal.3d 679, 682, disagreed with on another ground in People v. Mendez, supra, 19 Cal.4th at pp. 1097-1098 & fn. 7; § 1237.5.) Because defendant’s claim--trial counsel’s decision not to include in the plea agreement an option to file a Romero motion--relates to defense counsel’s assistance before and during the plea, and because defendant did not obtain a certificate of probable cause, we cannot address this claim.
Defendant’s first contention, that his trial counsel rendered ineffective assistance after the plea by failing to challenge the validity of the strike prior, may be addressed without a certificate of probable cause, as the claim does not challenge the plea’s validity. (See Panizzon, supra, 13 Cal.4th at p. 76.) It challenges counsel’s decision not to take advantage of an option provided in the plea.
To establish ineffective assistance, defendant must show his trial counsel’s performance was deficient and that he was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674].) To the first point, defendant contends trial counsel had no rational, tactical reason not to challenge the strike’s validity and thereby take steps that could result in a more favorable disposition. We disagree. Trial counsel told the court he determined the prior strike was valid. If the strike was valid, he had no legitimate reason to challenge its validity. Trial counsel may have concluded the strike prior was valid after reviewing the entire record of that conviction. The record does not show how counsel arrived at his determination, thus we must reject defendant’s claim that the determination was in error. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Even if the record before us may not be sufficient to make that finding--a point we do not concede--that does not compel us to conclude defense counsel could not find the strike prior valid. It was defendant’s burden to show defective performance, and defendant has not made that showing.
DISPOSITION
The judgment is affirmed.



HULL , Acting P. J.



We concur:



MURRAY , J.



DUARTE , J.