P. v. Sneed
Filed 10/15/07 P. v. Sneed CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, Plaintiff and Respondent, v. DONNIE KAY SNEED, Defendant and Appellant. | B194501 (Los Angeles County Super. Ct. No. BA277930) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Marsha N. Revel, Judge. Affirmed.
Charles B. Holzhauer, 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, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
On January 27, 2005, Deputy Justin Diez of the Los Angeles County Sheriffs Department detained Donnie Kay Sneed for a municipal code violation, urinating in a vacant lot (L.A.M.C. 41.47.2) and, after checking the Sheriffs Departments computer, learned that Sneed had failed to register as a sex offender (Pen. Code, 290, subd. (a)(1)(D)). During a search incident to arrest, Deputy Diez found rock cocaine in Sneeds left sock.
Sneed was charged by information on May 12, 2005 with possession of cocaine base in violation of Health and Safety Code section 11350, subdivision (a). The information specially alleged Sneed had suffered three prior serious or violent felony convictions within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two separate prison terms for a felony (Pen. Code, 667.5, subd. (b)).
At his arraignment, Sneed completed and signed a Faretta waiver form (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]) to represent himself. Thereafter, the trial court denied Sneeds repeated requests for transcripts of the proceedings in a prior felony case, funds for law books and a legal runner to assist him. The trial court granted Sneeds discovery motion for prosecution materials and his request for a private investigator.
On June 2, 2005, Sneed filed a motion for discovery under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess motion) that was denied on June 22, 2005.
Sneeds renewed his Pitchess motion on August 29, 2005 and requested additional investigator expenses. The trial court denied the Pitchess motion as untimely, granted Sneeds request for forensic toxicology analysis, and denied his various other motions.
On September 9, 2005, the trial court denied Sneeds motions for a continuance and to suppress illegally seized evidence (Pen. Code, 1538.5) as untimely. The same date, the People filed an amended information. Pursuant to a negotiated plea, Sneed agreed to enter a plea to possession of cocaine base in violation of Health and Safety Code section 11350, subdivision (a) and to admit he had suffered a prior strike felony conviction. According to the terms of the agreement, if at the time of sentencing Sneed were found to be eligible for probation and drug treatment under Proposition 36, he could then withdraw his admission to the prior strike felony conviction and be granted probation under Penal Code section 1210.1. If he were found to be ineligible for Proposition 36 probation, Sneed would then be sentenced to 32 months in state prison, or double the lower term of 16 months as a second strike offender. Because Sneed had previously been convicted of a serious or violent felony (Pen. Code, 667.5, subd. (c), 1192.7), his eligibility turned on whether the instant nonviolent drug possession offense occurred after a period of five years in which Sneed had remained free of prison custody (Pen. Code, 1210.1, subd. (b)(1)). Sneed claimed he had remained free from custody and thus qualified for Proposition 36 probation and drug treatment. The trial court continued the sentencing hearing to obtain relevant records from the Department of Corrections.
At the sentencing hearing on November 29, 2005, the trial court concluded Sneed was statutorily ineligible for Proposition 36 probation and drug treatment under Penal Code section 1210.1, subdivision (b). Sneed conceded he had not remained free of prison custody during the requisite time period but claimed he was eligible nonetheless because his incarceration was illegal. He also urged the court to allow him to withdraw his plea in the instant case. The court informed Sneed he could not collaterally attack the prior findings resulting in his incarceration that he had violated his parole and denied his motion to withdraw his plea in the instant case. In accordance with the plea agreement, Sneed was then sentenced to state prison for 32 months. The remaining special allegations were dismissed on the Peoples motion. Sneed was awarded 460 days of presentence credit. The court also imposed a $200 restitution fine (Pen. Code, 1202.4, subd. (b)), a $20 court security fee (Pen. Code, 1465.8, subd. (a)(1)), a $50 lab fee (Health & Saf. Code, 11372.5, subd. (a)) and $85 penalty assessments (Pen. Code, 1464, Gov. Code, 76000). The court imposed and suspended a $200 parole revocation fine (Pen. Code, 1202.45).
On March 14, 2006, we concluded Sneeds notice of appeal was inoperative because it failed to specify the basis of the appeal as required by Penal Code section 1237.5 and then California Rules of Court, rule 30(b)(1) (now rule 8.304(b)(1)) and to include a certificate of probable cause. We ordered the appeal dismissed.
On October 10, 2006, the trial court granted Sneeds petition for writ of habeas corpus, set aside and vacated Sneeds prior sentence to allow him another opportunity to file a notice of appeal with the required certificate of probable cause. The trial court re-imposed the same sentence it had imposed on November 29, 2005, but recalculated the presentence credit. Sneed was awarded 933 days of presentence credit (622 actual days and 311 days of conduct credit).
Sneed signed and filed a notice of appeal on Judicial Council Approved Form CR-120 (Rev. July 1, 2005). A check mark was placed in a box on the notice of appeal indicating the appeal was from a guilty or no contest plea, and another check was placed in the box, indicating as other grounds for appeal not stated on the form, that Sneed was contesting the [h]earing on state prison prior. The court says he did go to prison. He said he did not go to prison. In his request for a certificate of probable cause, Sneed wrote, [D]efendant disputes existence of prior prison commitment.[1]The trial court granted that request for a certificate of probable cause.
We appointed counsel to represent Sneed on appeal. After examination of the record, counsel filed an Opening Brief in which no issues were raised. On March 27, 2007, we advised Sneed that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date. Our independent review of the record prompted us to request briefing from the parties limited to the issue of whether Sneed presented a plausible scenario that would have justified granting his Pitchess motion on June 22, 2005. However, on the basis of the parties supplemental briefs, we conclude that the judgment should be affirmed. Although Sneed obtained a certificate of probable cause, his notice of appeal, the transcript of the October 10, 2006 hearing and the certificate of probable cause itself show that Sneed is belatedly attempting to collaterally attack his prior judgment of conviction, which he is precluded from doing under the circumstances. (See In re Ronald E. (1977) 19 Cal.3d 315.)
We have examined the entire record and are satisfied that Sneeds attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 112-113; Peoplev. Wende (1979) 25 Cal.3d 436, 441.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZELON, J.
We concur:
PERLUSS, P. J. WOODS, J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
[1] Any misspellings by Sneeds have been corrected. Sneeds request for a certificate of probable cause made other legal claims not pertinent to his appeal, but merely served to justify the courts authority to issue a certificate of probable cause.
