P. v. Bloom

Filed 1/10/07  P. v. Bloom CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

                      APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel and Albert T. Harutunian III, Judges.  Affirmed.

                      After the trial court found Anh Bloom competent to stand trial, Bloom entered negotiated guilty pleas to assault with intent to rape (Pen. Code, §  220)^[1]  and assault with a deadly weapon (§  245, subd. (a)(1)).  He admitted personally using a knife during the crimes, a prior strike (§§  667, subds. (b)-(i), 1170.12, 668) and two prior serious felony convictions (§  667, subd. (a)(1)), and waived the right to appeal any stipulated sentence.  The court sentenced him to a stipulated 25 years in prison:  double the six-year upper term for assault with intent to rape with a prior strike, enhanced by two five-year terms for the prior serious felony convictions and one year for weapon use, with a consecutive two years for assault with a deadly weapon with a prior strike (one-third the middle term). The court awarded credit for time served and denied a certificate of probable cause.  (Cal. Rules of Court, former rule 30(b).)

FACTS

                      Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred.  After dark on March 16, 2005, Bloom approached a woman who was fishing on the Bayside Park pier.  Bloom put a hand on her buttocks.  When she walked way, Bloom said to her, " I'm gonna cut your fucking throat."   He threw her to the ground and got on top of her.  The victim grabbed Bloom's hand that was holding a knife and struggled with him attempting to keep the knife away from her.  Bloom placed his hand inside her pants, and told, " Pull your fucking pants down.  I want to fuck you and I want to fuck you right now."   Because Bloom entered guilty pleas, he cannot challenge the facts underlying the convictions.  (§  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.)  We need not recite the facts in greater detail.

DISCUSSION

                      Appointed appellate counsel has filed a brief setting forth the evidence in the superior court.  Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende).  Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel refers to as possible but not arguable issues:  (1) whether the waiver of the right to appeal the stipulated sentence is valid; (2) whether Bloom's guilty pleas were constitutionally valid; (3) whether Bloom was competent to stand trial; (4) whether the court properly calculated credit for time served; and (5) whether the trial court abused its discretion in denying the certificate of probable cause.  We respond to the Anders issues as follows.

1.  Waiver of the Right to Appeal the Stipulated Sentence

                      The propriety of a stipulated sentence is not reviewable absent a certificate of probable cause.  (People v. Panizzon (1996) 13 Cal.4th 68, 79.)

2.  Validity of Guilty Pleas

                      Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal.  (§  1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.)

3.  Competency to Stand Trial

                      Section 1368, subdivision (c) states

" [W]hen an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined."

                      As the Supreme Court noted in People v. Marks (1988) 45 Cal.3d 1335, 1340 (Marks):

" Under the clear language of section 1368, the trial court had no jurisdiction to proceed on the charges against defendant until the court determined whether defendant was competent to stand trial."

                      In Marks, supra, 45 Cal.3d 1335, the Supreme Court reversed a conviction because the trial court expressed a doubt as to the defendant's competency and appointed experts but did not hold a competency hearing.  (Accord People v. Hale (1988) 44 Cal.3d 531.)  In People v. Maxwell (1981) 115 Cal.App.3d 807 (Maxwell), the court expressed doubt as to the defendant's competency and appointed experts who reported to the court in writing.  At the time set for a hearing on the competency issue, neither counsel presented any evidence.  The trial court found the defendant competent and he appealed, contending he was denied a competency hearing.  The reviewing court held to the contrary, stating:

" The burden was on defense counsel to offer any evidence he might have in support of the allegation of mental incompetence.   (§ 1369, subd. (b)(1).)   Defense counsel not having assumed the burden and the People having elected to offer no evidence, the court was left with two letters from the doctors reciting defendant's refusal to see them, its own observations of defendant since its expression of doubt a month and a half before and the presumption of mental competence which defense counsel had not seen fit to challenge.   [Citation.]  On this state of the record the judge declared that he no longer had a doubt in his mind concerning defendant's competence to stand trial.   The fact that neither party chose to present evidence on the issue does not point to the absence of a hearing.   This very situation is clearly contemplated in section 1369, subdivision (b)(2), Penal Code."   (Maxwell, supra, 115 Cal.App.3d at pp. 811-812.)

                      In Marks, supra, 45 Cal.3d at pages 1342-1343, the Supreme Court approved and distinguished Maxwell, supra, 115 Cal.App.3d 807, because there the trial court received the expert's reports and stated its opinion as to whether the defendant was competent.  Here, the trial court expressed doubt as to competency, appointed an expert and reviewed the report from the expert.  Neither defense counsel not the prosecution offered evidence and the court ruled Bloom was competent to stand trial.  In doing so, as in Maxwell, supra, and unlike Marks, supra, 45 Cal.3d 1335, and People v. Hale, supra, 44 Cal.3d 531, the court held the hearing that section 1368 requires.

4.  Credit for Time Served

                      The court of appeals will not entertain a challenge to credit for time served absent the defendant raising the issue in the trial court.  (People v. Salazar (1994) 29 Cal.App.4th 1550, 1557.)  Bloom has not raised the credit for time served issue in the trial court.

5.  Denying the Certificate of Probable Cause

                      If a certificate of probable cause has been erroneously denied, the denial is reviewable by a petition for writ of mandate.  (In re Brown (1973) 9 Cal.3d. 679, 683.)

                      We granted Bloom permission to file a brief on his own behalf.  He has not responded.  A review of the entire record pursuant to Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.  Competent counsel has represented Bloom on this appeal.

DISPOSITION

                      The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

                                                                    McINTYRE, J.

                                                                                      IRION, J.

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^[1]                    All statutory references are to the Penal Code.