P. v. Harper

Filed 5/6/08 P. v. Harper CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jeff Hamilton and W. Kent Hamlin, Judges.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

Appellant, Timothy Allen Harper, was charged in a felony complaint filed July 7, 2005, with two counts of unlawful taking of a vehicle on March 20, 2004 (Veh. Code,  10851, subd. (a); counts one & three) and second degree commercial burglary on March 20, 2004 (Pen. Code,  459 & 460, subd. (b); count two).^[1] The complaint alleged two prior prison term enhancements ( 667.5, subd. (b)) and a prior serious felony conviction within the meaning of the three strikes law. On July 18, 2007, appellant executed a felony advisement, waiver of rights, and plea form acknowledging that he was waiving his constitutional rights,^[2]he would admit count one and a prior serious felony conviction, he faced a maximum period of incarceration of 32 months, and that there was a factual basis for his plea.^[3]

On July 18, 2007, appellant acknowledged executing the waiver of rights form and initialing the waiver of his constitutional rights. Appellant admitted the factual basis for his plea to count one. The court advised appellant of the consequences of his plea. Appellant pled no contest to count one and admitted the prior serious felony conviction. The court advised appellant that his sentence in the instant action would be imposed without reference to his case in Arizona.

On August 15, 2007, the date set for sentencing, appellant told the court that he thought he was going back to Arizona to serve his sentence there and then return to California. Defense counsel asked the court to release appellant to serve his sentence in Arizona and give him credit for the time served in California while he was serving his Arizona sentence. The trial court stated it was not inclined to do that because the 32-month sentence in the plea agreement was a little too generous. Defense counsel explained that appellants sentence in Arizona was for two and a half years. Appellant informed the court that he preferred to serve his sentence in California. To determine how Arizona would treat appellants sentence there, appellant consented to a brief continuance of his sentencing.

The probation officer filed a document stating that an official with the Arizona Department of Corrections and Rehabilitation explained that while appellant was incarcerated in California, he was earning credits in Arizona toward his sentence there.^[4] If appellant were to be sent to Arizona, he would be released on September 25, 2008. Should appellant be held in California beyond that date, Arizona would drop its hold on him on December 15, 2008.

On August 22, 2007, the court stated that given his history, appellant would not be a good candidate for probation. The court sentenced appellant to the low term of 16 months, doubled to 32 months pursuant to the three strikes law. The court ordered appellants sentence to be served consecutive to his sentence in Arizona. When appellant finished his sentence in Arizona, he would begin his sentence in California for the instant offense. The court imposed a restitution fine. Appellant filed a timely notice of appeal. Appellant failed to obtain a certificate of probable cause.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on December 11, 2007, we invited appellant to submit additional briefing. To date, he has not done so.

FACTS

At 6:18 a.m. on March 20, 2004, an officer from the Fowler Police Department saw that the front gate of Bellamy Equipment Brokers had been driven through and damaged.^[5] The officer found that the window of a green Ford truck in the lot was broken. The dashboard was removed and the stereo was missing. A black Ford Expedition had moderate damage to the front bumpers. It appeared to the officer that the Expedition had been driven through the front gate. Bellamy managers arrived and told the officer the damaged vehicles had been returned the previous day without damage. The gates had been secured the evening before the incident.

Several other vehicles in the lot had been moved and/or damaged. Some were damaged slightly, others suffered significant damage. A Ford F-550 truck was missing from the lot. The California Highway Patrol later recovered the truck in the Sacramento area. On March 21, 2004, an officer found a blue Chevy Silverado truck in front of 2250 S. Golden State near Bellamy Equipment. The Silverado was found to have been stolen from Sacramento. A backpack, duffle bag, cell phone, and other items were recovered from the Silverado. The duffle bag contained a photo album and a letter addressed to Tim Harper.

A tow truck driver contacted the police and told them the Silverado had been towed. The tow truck driver also advised the police that once at the tow yard a subject approached him and asked to recover personal property from inside the Silverado. The tow truck driver told him to contact the Fowler Police Department. A photographic lineup was prepared for the tow truck driver, which included a photograph of appellant. The tow truck driver picked appellants picture from the lineup.

DISCUSSION

We initially note that appellant failed to obtain a certificate of probable cause from the trial courts initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

A guilty plea is, for most purposes, the legal equivalent of a jurys guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)

Appellant was promised a term of no more than 32 months and this was the sentence he received. Appellant waived his Boykin/Tahl rights and admitted a factual basis for his plea.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Cornell, J.

Judge Hamilton presided over appellants change of plea. Judge Hamlin sentenced appellant.

^[1] Unless otherwise indicated, statutory references are to the Penal Code.

^[2] The form set forth appellants rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).

^[3] According to the probation report, appellant committed the instant offense on March 20, 2004. Appellant went to prison on May 17, 2004 on a violation of parole and was released on February 22, 2005. Appellant was arrested in April 2005 for a second parole violation and released in November 2005. In December 2005, appellant absconded from parole in California and was arrested in Arizona on December 16, 2005.

^[4] Appellant was convicted in Arizona of forgery.

^[5] There was no preliminary hearing in this case. The facts are derived from the probation report.