Filed 8/29/17 P. v. Edwards CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD E. EDWARDS,
Defendant and Appellant.
| D070471
(Super. Ct. No. SCE359744) |
APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Donald Edwards appeals after pleading guilty to the unlawful use of personal identifying information of another in violation of Penal Code[1] section 530.5, subdivision (a), and admitting the allegation that he had previously been convicted of a serious or violent felony within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668.
Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We granted Edwards an opportunity to file a supplemental brief on his own behalf, but he did not do so. After independently reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we find no arguable appellate issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Edwards was charged in a six-count complaint with three felony counts of unauthorized use of personal identifying information of another, in violation of section 530.5, subdivision (a), and three felony counts of second-degree burglary, in violation of section 459. The complaint further alleged that Edwards had served a prior prison commitment within the meaning of sections 675, subdivision (b) and 668, and that he had previously been convicted of a serious or violent felony (a strike prior) within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668.
On April 21, 2016, the date scheduled for the preliminary hearing, Edwards moved to relieve appointed counsel and have the court appoint new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court held a closed hearing, where Edwards withdrew his Marsden motion. The parties returned to the courtroom, and the prosecution offered a prepreliminary hearing plea deal of 32 months in state prison. The court held a second closed hearing at defense counsel's request. Thereafter, Edwards waived his right to a preliminary hearing and accepted the deal. He submitted a change of plea form pleading guilty to count 1 and admitting the strike prior allegation. In providing a factual basis for the plea, Edwards admitted, "I did attempt to use a credit card issued to another person without permission to get goods, credit, or services. I do have the strike prior indicated." Edwards agreed to be sentenced to 32 months in state prison, consisting of the low term of 16 months on count 1, doubled for the strike prior. In exchange for the guilty plea and admission, the People agreed to dismiss the balance of the felony complaint.
During the plea colloquy, the court asked Edwards if he wanted to admit that he "attempted to use a credit card from another person, without their permission, to get goods, credits or services" and that he had a strike. Edwards replied, "Yes." Edwards also responded "Yes" when the court asked if he understood that he would be sentenced to "the low term on count 1, which is 16 months, . . . doubled because of the strike." The court accepted Edwards's plea and admission and found he had knowingly and intelligently waived his constitutional rights. Pursuant to the parties' agreement, the court dismissed the balance of the complaint, as well as the two open misdemeanor cases. The court also revoked, reinstated, and terminated probation in the trailing probation revocation case.
Defense counsel asked for immediate sentencing, and the court imposed the sentence set forth in the plea agreement of 32 months in state prison, with 32 days of presentence credit. The court also imposed a $200 restitution fine (§ 1202.4, subd. (b)), a $200 suspended parole revocation fine (§ 1202.45), and applicable fees and assessments.
Edwards filed a notice of appeal in May 2016 but failed to state the grounds for his appeal. He filed an amended notice of appeal in June 2016 indicating he appealed the sentence or other matters occurring after the plea. He did not request a certificate of probable cause.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but asked this court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as issues that "might arguably support the appeal":
(1) whether Edwards made his plea and admission knowingly, intelligently, and voluntarily (See People v. Cross (2015) 61 Cal.4th 164, 170; Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132; People v. Castrillon (1991) 227 Cal.App.3d 718, 722);
(2) whether Edwards could challenge the validity of his plea on the ground the trial court failed to ask him to answer how he wished to plead to the charge in count 1, guilty or not guilty, when he received the sentence he bargained for; and
(3) whether Edwards could challenge the validity of his plea on the ground he was not informed the commercial burglary charges in counts 2, 4, and 6 (dismissed pursuant to the plea) were misdemeanors under Proposition 47 (See People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Cruz (1974) 12 Cal.3d 562, 566).
We granted Edwards permission to file a supplemental brief on his own behalf, but he has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issue.
The three possible issues raised by counsel challenge the validity of the plea, rather than the sentence or other matters occurring after the plea. Because Edwards did not request a certificate of probable cause, we may not consider any of these challenges by direct appeal. (§ 1237.5;[2] Cal. Rules of Court, rule 8.304(b) (rule 8.304(b));[3] People v. Mendez (1999) 19 Cal.4th 1084, 1088 (Mendez) [absent a certificate of probable cause, defendant " may not obtain review of so-called 'certificate' issues, that is, questions going to the legality of the proceedings, including the validity of his plea"].)[4] Instead, Edwards may seek review only of "noncertificate" issues—that is, "postplea questions not challenging his plea's validity" or a "denial of a motion to suppress evidence under . . . section 1538.5." (Mendez, at p. 1088; rule 8.304(b)(4).)
Edwards's notice of appeal indicates that it is, in fact, "based on the sentence or other matters occurring after the plea." A certificate of probable cause is not required for such matters. (Mendez, supra, 19 Cal.4th at p. 1088.) However, we discern no reasonably arguable appellate issue in the sentence or other matters occurring after the plea. The trial court sentenced Edwards to a term of 32 months in state prison, in accordance with the terms of the plea agreement. That sentence was properly based on the lower 16-month term for count 1, doubled for the strike prior. (§ 667, subd. (e)(1), 1170.12(c)(1).)
Having reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, we find no reasonably arguable appellate issue. Edwards has been adequately represented by counsel in this appeal.
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
[1] Further statutory references are to the Penal Code unless otherwise indicated.
[2] Section 1237.5 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."
[3] Rule 8.304(b) provides, in relevant part: "(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court with the notice of appeal required by (a)—the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶] . . . [¶] . . . (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 plea's validity. [¶] (5) If the defendant's notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1)."
[4] A certificate of probable cause is designed to promote judicial economy " 'by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money are spent' on such matters as the preparation of the record on appeal [citation], the appointment of appellate counsel [citation], and, of course, consideration and decision of the appeal itself." (Mendez, supra, 19 Cal.4th at p. 1095.)
