P. v. Burke

Filed 10/22/07 P. v. Burke CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal comes before us following defendants entry of a negotiated plea of guilty to a charge of grand theft (Pen. Code,  487, subd. (a)),[1] and his admission of an associated enhancement for excessive taking ( 12022.6, subd. (a)(1)). His counsel has raised no issues and asks this court to conduct an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant has been advised by counsel that he has the right to file a supplemental brief raising issues for our review. He has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY[2]

The victim of the offense, Jacquelyn Holmes, met defendant while he was incarcerated in state prison for fraud and forgery convictions. After defendant was released from prison on parole in September of 2002, Holmes gave him a key to her condominium in San Francisco, which gave him access to her residence where she kept records of her equity line account with Washington Mutual Bank. Holmes also agreed to open a checking account in her name at Washington Mutual Bank into which defendant would be able to put his money and make withdrawals. The checking account was opened on September 20, 2002, with $200 contributed by defendant. Defendant also convinced Holmes to execute a limited power of attorney associated with the checking account, naming him as attorney-in-fact, ostensibly so he could run his money through that account.

Holmes subsequently discovered that in late September and early October two withdrawals had been made by cashiers checks drawn against her Washington Mutual equity line in the amounts of $50,000 and $135,000. The two checks purportedly bore her signature, but Holmes testified that she neither signed checks nor authorized anyone else to do so. The two checks were then deposited by defendant without Holmess knowledge into the checking account she opened for him, using the power of attorney.

Holmes also drew two cashiers checks from the Washington Mutual checking account in the amounts of $90,000 and $30,000, which were deposited in other bank accounts in defendants name. Defendant told Holmes that he intended to use the $90,000 to make a down payment on a house he was going to buy and remodel for sale at a profit. The $30,000 was deposited by Holmes in a joint Wells Fargo business account they opened to fund defendants construction business, ostensibly for use to pay the workers who were helping him do the remodeling. Defendant also represented to Holmes that he would make deposits into the Washington Mutual checking account with his own money to cover the withdrawals, and use funds he received from the sale of the remodeled house to reimburse their business checking account, but he never did so.

Only later did Holmes learn that money from the Washington Mutual checking account was withdrawn by defendant and placed in other accounts in his name or paid by him to other parties. Defendant also made unauthorized use of a Sears credit card that belonged to Holmes to charge $2,400 worth of tools. The total loss to the victim was calculated at $247,722, which included her lost wages and legal fees.

Defendant entered his guilty plea on June 7, 2006, after his Marsden[3] motion and a motion to dismiss a charge (count 2) of fraud by false pretenses ( 532, subd. (a)) were denied. Pursuant to a negotiated disposition, two charged offenses (counts 1 and 2) and one excessive taking enhancement allegation were dismissed, and a sentencing formula was agreed upon: if defendant made no restitution to the victim by the date of the sentencing hearing set for 45 days from the date of the plea he would be sentenced to the upper term of three years for grand theft plus a one-year enhancement for excessive taking; if he made a payment of $50,000 the maximum sentence would be three years; if he made a payment of at least $100,000 the sentence would be reduced to two years in state prison.[4] Defendant also retained the right to contest the amount of restitution owed to the victim as calculated by the probation department. He was promised pre-sentence credits for time spent in prison for his related parole violation.

The sentencing hearing occurred on August 9, 2006. By that date defendant had paid a total of $150,000 in restitution to the victim. Upon motion by the prosecution, the trial court struck the excessive taking enhancement, dismissed counts 1 and 2, and imposed a total state prison term of two years, with 463 days of pre-sentence credits. The court imposed a $200 restitution fine ( 1202.4, subd. (b)), a $200 parole revocation fine ( 1202.45), and a $20 court security fee ( 1465.8). The court also required defendant to provide a DNA sample and print impressions ( 295 et seq.).

Notice of appeal was timely filed. Defendants application for a certificate of probable cause was denied by the trial court.

DISCUSSION

Following defendants entry of a guilty plea the issues cognizable in this appeal are limited. In the case of a judgment of conviction following a plea of guilty or no contest, section 1237.5 authorizes an appeal only as to a particular category of issues and requires that additional procedural steps be taken. That statute provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.  (In re Chavez (2003) 30 Cal.4th 643, 650.)  Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citation.] (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.)

 The statutory requirement and its exceptions are embodied in rule 30(b)(4) [now rule 8.304(b)] of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless the notice of appeal states that the appeal is based on: [] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [] (B) grounds that arose after entry of the plea and do not affect the pleas validity.  [Citation.] [] It has long been established that issues going to the validity of a plea require compliance with section 1237.5. . . . [Citation.] (People v. McEwan (2007) 147 Cal.App.4th 173, 177178.)

Rule 8.304(b) also sets forth the applicable deadline, as well as other conditions for filing a notice of appeal from judgment of conviction entered upon a plea of guilty or nolo contendere. (In re Chavez, supra, 30 Cal.4th 643, 650.) Rule 8.304(b)(1) specifies that in addition to the notice of appeal the defendant must file the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. Then,  Within 20 days after the defendant files the statement the trial court shall execute and file either a certificate of probable cause or an order denying a certificate and shall forthwith notify the parties of the granting or denial of the certificate.  (In re Chavez, supra, at p. 650.) (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal Inoperative, notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. [] (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [] (B) Grounds that arose after entry of the plea and do not affect the pleas validity. (Rule 8.304(b).) A defendant seeking appellate review following a guilty plea must fully and timely comply with both section 1237.5 and rule 8.304(b). (People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. Young (2000) 77 Cal.App.4th 827, 829.)

Here, defendant filed a notice of appeal in which he asserted as grounds the denial of his motion to dismiss the charges for lack of timely prosecution ( 1381, 1382), inadequate assistance of counsel at the preliminary hearing, denial of his Marsden motion before trial, denial of his right to retain counsel of choice for trial, the validity of his time waiver, and custody credits. Particularly where, as here, defendants request for a certificate of probable cause was denied,[5] none of the issues stated in the notice of appeal are cognizable following his entry of a guilty plea, except the award of custody credits. (See People v. Holland (1978) 23 Cal.3d 77, 84.)

In any event, upon our review we find no arguable search and seizure issues. Appellant did not make a motion to suppress evidence pursuant to section 1538.5, and the record does not reveal any search and seizure issues to be considered.

Also upon review of the record, and particularly the transcript of the negotiated plea, we conclude that appellant was thoroughly and accurately advised by the court and his counsel before entry of the plea, and freely and knowingly exercised his judgment in entering into the plea, as the trial court found. We find nothing in the record to indicate that defendant lacked competence or understanding to enter the plea.

No sentencing errors were committed. In imposing sentence, the trial court properly considered evidence in the record, including the information in the probation report, and the argument of counsel. The denial of probation was in accord with the recommendation of the probation report and is supported by the evidence. The imposition of the middle term of two years was consistent with the negotiated plea and the restitution paid by defendant. (People v. Sutton (1980) 113 Cal.App.3d 162, 165166.) The court was justified in imposing the fines, the court security fee, and requiring defendant to submit a DNA sample. No error in the calculation of presentence custody credits is established.

Appellant was represented by counsel throughout the proceedings.

After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.

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People v. Burke, A115664

[1] All further statutory references are to the Penal Code; all references to rules are to the California Rules of Court.

[2] Since the present appeal is taken from a no contest plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the preliminary hearing transcript and the probation report.

[3]People v. Marsden (1970) 2 Cal.3d 118.

[4] Pursuant to the agreement the court would also retain jurisdiction after the 45-day period to resentence defendant according to the formula if he made additional payments.

[5] We observe that review of the denial of a request for a certificate of probable cause is by writ of mandate, and we find no abuse of discretion in the trial courts denial of the request in the present case. (See In re Brown (1973) 9 Cal.3d 679, 683; People v. Castelan (1995) 32 Cal.App.4th 1185, 11871188.)