P. v. Tate
Filed 7/29/13 P. v. Tate CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LAMAR LOUIS
TATE,
Defendant and Appellant.
A137428
(San Mateo
County
Super. Ct.
No. SC076962A)
Appellant,
Lamar Louis Tate, appeals from a judgment entered on his no contest plea to
raising no issues and requesting this
court to conduct an independent review of the record pursuant to
436. As the appeal is based solely on
grounds occurring after entry of the plea and does not challenge the validity
of the plea, it is authorized. (Cal.
Rules of Court, rule 8.304(b)(4).)
As
will be seen, no preliminary hearing
was held in this case and no probation report documenting the facts was
prepared. We therefore take the facts
from the police report.
On
October 27, 2010, Foster
City police officers responded to a dispatch that a
young Black male was then at the Bank of America branch on East
Hillsdale Boulevard, attempting to cash a
fraudulent check on a checking account that had been flagged for fraudulent
activity. When the officers arrived, the
suspect, appellant, told them he was cashing a check for $1,789.34 made out to
him by Carlos Marcet for roofing work done on his home. When contacted by the police, Marcet said he
did not know appellant, and also that the previous day a fraudulent check had
been written on his account. Appellant
was arrested and transported to the
County jail.
On
January 5, 2011, appellant
was charged by the San Mateo County District Attorney with one felony count of
second degree burglary (Pen. Code, § 460, subd. (b)),
two felony counts of forgery (§§ 470, 476), and one felony count of attempted
grand theft. (§§ 664/487, subd.
(a).)
On
November 14, 2012, after
waiving his right to a preliminary
hearing and his Boykin/
rights, appellant entered a plea of no contest to second degree burglary, the
offense charged in count 1 of the complaint.
The plea was entered on the understanding the court would suspend
imposition of sentence and place appellant on probation, including a one-year
term in county jail.
a police report as the factual basis of the plea.
After
appellant waived his right to a probation report, the court immediately
proceeded to sentencing. As earlier
indicated, the court suspended imposition of sentence and placed appellant on
probation for three years. As a
condition of probation, and as the court had also indicated, a one-year county
jail term was also imposed, and allowing a total of 16 days of credit for time
served and work time. (§§ 2900.5,
4019.)
The
court also imposed standard terms of probation, including a four-way search
clause (person, residence, vehicle, and “any area under your immediate custody
and control†at any time, without consent or a warrant or probable cause), ban
on the possession of deadly weapons, counseling, treatment as directed by the
probation department, that he maintain full-time employment or vocational
training as directed, and that he submit to genetic marker testing.
Lastly,
the court imposed a $240 restitution fine (§ 1202.44, subd. (b)), a $40
court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov.
Code, § 70373), and a probation supervision fee not to exceed $100 per
month (§ 1203.1b).
Appellant
stated that he understood and accepted the terms and conditions of probation.
On
December 26, 2012,
appellant filed a timely notice of appeal.
Where,
as here, an appellant has pled not guilty or no contest to an offense, the
scope of reviewable issues is restricted to matters based on constitutional,
jurisdictional, or other grounds going to the legality of the proceedings
leading to the plea; guilt or innocence are not included. (People
v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Nothing
in the record indicates appellant was mentally incompetent to stand trial or to
understand the admonitions he received from the court prior to entering his
plea, and to thereupon enter a knowing and voluntary plea.
The
admonitions given appellant at the time he entered his plea fully conformed
with the requirements of Boykin v.
238 and In re Tahl, supra, 1 Cal.3d
122, and his waiver was knowing and voluntary.
The
only question relating to the plea appearing from the record is whether there
was a factual basis for appellant’s plea.
On November 14, 2012,
when appellant’s plea was taken, the court asked defense counsel: “Mr. Newbould, do you concur in the plea, in
the waivers, and stipulate to the factual basis?†Counsel responded, “Yes I
do. And I stipulate to a factual basis
based on the police report.†The police
report was not, however, contained in the appellate record transmitted to this
court by the San Mateo Superior Court, and the clerk of that court was unable
to provide us a copy. On July 23, 2013, the clerk of our court
received a copy of the police report from San Mateo County Deputy District Attorney
Megan Williams, who represented the People in this matter in the superior
court. An order augmenting the appellate
record with the report was filed the next day.
The substance of the report, and the attached copies of fraudulent
checks payable to appellant written on Carlos Marcet’s Bank of America checking
account, unquestionably provide a factual basis for appellant’s plea.
Appellant
was at all times represented by competent counsel who protected his rights and
interests.
The
sentence imposed is authorized by law.
Our
independent review having revealed no arguable issues that require further
briefing, the judgment of conviction, which includes the sentence imposed, is
affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Lambden, J.
name="_ftn1" title="">[1] All statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] Boykin
v. Alabama
(1969) 395 U.S.
238, In re Tahl (1969) 1 Cal.3d 122.
