P. v. Conner

Filed 6/26/07 P. v. Conner CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge. Appeal dismissed.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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Christian Conner appeals from the judgment entered upon revocation of probation that had been granted in conjunction with his negotiated plea of guilty to possession of a controlled substance for the purpose of sale. He contends that he was improperly sentenced to the upper term. We conclude that the appeal must be dismissed based on defendants failure to secure a certificate of probable cause.

BACKGROUND

Defendant was charged with transportation of cocaine base (Health & Saf. Code,  11352, subd. (a); count 1) and possession of cocaine base for the purpose of sale (id.,  11351.5; count 2). On May 15, 2005, count 2 was reduced to the offense of possession of a controlled substance for the purpose of sale (Health & Saf. Code,  11351) and defendant pleaded guilty to that count in exchange for a grant of probation. At the time of the plea, defendant was admonished that if he violated probation, he could be sent to prison for up to four years. Sentencing was set for a later date.

A probation officers report prepared for sentencing stated that the charges arose from an incident in which defendant was stopped for driving a car without wearing a seatbelt. There were also small children in the car who were not wearing seatbelts. When approached by the officers, defendant attempted to hide rock cocaine in the diaper of a baby who was also in the car. Defendants prior history revealed that four juvenile petitions had been sustained against him separate petitions in 1999 for robbery and for petty theft, a petition in 2000 for burglary, and a petition in 2002 for taking a vehicle without the owners consent. In 2003, defendant was received in the California Youth Authority based on the 2002 petition and was paroled later that year. In January 2005, defendant had been taken before the parole board for a violation hearing, but witnesses did not appear and defendant was continued on parole. The probation officer recommended an upper term sentence in this case based on the aggravating factors of planning, sophistication or professionalism, defendants prior adjudications being numerous or of increasing seriousness, and defendant having been on parole at the time of the offense.

At a sentencing hearing in June 2005, imposition of sentence was suspended and defendant was placed on formal probation for three years with the condition, among others, that he serve 50 days in county jail.

Defendant failed to report to his probation officer. At a hearing in April 2006, defendant stated that he had been returned to Youth Authority for a parole violation as a result of the current case. Defendant admitted that he was in violation on the current case and the court continued him on probation with an additional 60 days in county jail.

In May 2006, defendants probation was summarily revoked. At the violation hearing, evidence was adduced that on April 24, 2006, police officers responding to a call regarding men jumping over a fence in a residential neighborhood detained three men, including defendant. Defendant was in possession of black gloves; another of the men also had gloves, as well as a screwdriver with a chipped tip. Later investigation revealed that screen meshing on the back door of the house from which the men had come had been pried back, and it was open.

With respect to sentencing, the prosecutor argued for the upper term, noting among other things that the upper term had been recommended in the original probation officers report and that defendant had two positive tests for marijuana use while he was on Youth Authority parole. Defense counsel noted defendants youth and his early plea in this case.

Defendant was sentenced as follows: Lets see. He was born 5-21-88. So hes fairly young. Thats a mitigating factor. He did admit the underlying offense at an early stage in the proceedings. On the other side of the coin, you have the fact that the underlying crime appeared to be appeared to involve sophistication, planning and professionalism. And his prior involvement in the law he had several of them, so he has a record. And also he was on parole at the time the underlying offense was committed. And then on probation on this case. He violated once and was given 60 days, and then here he is violating again. [] . . . Therefore, I find that the aggravating factors outweigh the mitigating factors, and I do sentence him to state prison for the high term of four years.

DISCUSSION

Defendant contends that imposition of the upper term in the absence of a jury finding of aggravating circumstances beyond a reasonable doubt violated Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856] (Cunningham), and that to the extent the issue may be deemed forfeited based on the failure to present it properly below, trial counsel rendered ineffective assistance. The Attorney General counters that the appeal should be dismissed based on defendants failure to obtain a certificate of probable cause, and alternatively that the issue has been forfeited and that reliance on recidivism factors in pronouncing sentence renders harmless any Cunningham error that might have been committed.

Under Penal Code section 1237.5, a certificate of probable cause is a prerequisite to an appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant is challenging the validity of a search and seizure or is raising issues regarding proceedings held subsequent to the plea. (See People v. Buttram (2003) 30 Cal.4th 773, 780.) A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] (People v. Shelton (2006) 37 Cal.4th 759, 767.) The plea agreement here provided defendant with a grant of probation in exchange for exposure to a maximum term of four years in state prison. As such, even though sentence was imposed in a proceeding held subsequent to the plea, defendants challenge to that sentencing was in substance a challenge to the pleas validity and thus required a certificate of probable cause. (Id. at p. 769; see People v. Bobbit (2006) 138 Cal.App.4th 445, 447). Accordingly, defendants appeal must be dismissed. (People v. Shelton, supra, 37 Cal.4th at p. 771; People v. Bobbit, supra, 138 Cal.App.4th at p. 448.)

With respect to the ineffective assistance of counsel claim, given the negotiated plea by which defendant agreed to permit the court to sentence him to a four-year term, issuance of a certificate of probable cause would not have been authorized had one been requested. (See People v. Shelton, supra, 37 Cal.4th at p. 770; People v. Berutko (1969) 71 Cal.2d 84, 94.)^[1] Accordingly, defendants trial counsel cannot be faulted for failing to make such request.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]On February 7, 2007, the California Supreme Court granted review in five cases presenting claims of sentencing error under Cunningham. In one of the cases (People v. French, S148845), the defendant entered a plea of no contest and was sentenced in accordance with his plea agreement.

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.