P. v. Wonderley

Filed 7/5/07 P. v. Wonderley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Trinity)

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Defendant Richard Allen Wonderley appeals after pleading no contest to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))^[1] and admitting the allegation he had previously been convicted of a serious felony ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).

On August 2, 2005, defendant pled no contest to criminal threats ( 422), a serious felony, and resisting an officer ( 69).^[2] (Case No. 05F062.) Imposition of sentence was suspended, and defendant was granted three years probation. The terms of probation included that he restrain from the consumption or possession of alcohol, a no contact order with the victims of the crime, and that he stay away from the trailer park in which he had lived.

On August 30, 2005, an intoxicated defendant went to the trailer park, threatened one of the prior victims, and assaulted his girlfriend.^[3] In the course of a few hours, defendant also assaulted other bystanders at the trailer park; two weeks later he stole a wallet from one of them.

A petition for revocation of probation was filed on September 8, 2005. In addition, defendant was charged with inflicting corporal injury on a former cohabitant ( 273.5, subd. (a)), dissuading a witness ( 136.1, subd. (c)(1)), two counts of misdemeanor battery ( 242), burglary ( 459), making criminal threats ( 422), and robbery ( 211). It was further alleged that defendant had suffered a prior serious felony conviction. (Case No. 05F124.)

On February 15, 2006, defendant entered a negotiated plea, under which he would plead no contest to an added count of assault with a deadly weapon ( 245, subd. (a)(1)) as a nonstrike felony, admit having suffered a prior strike, and admit the violation of probation. In exchange for his plea, defendant would be sentenced to the midterm of three years, doubled to six because of the prior strike. By agreement between the parties, defendant was CRC eligible. Specifically, the parties stipulated that defendant was either addicted to or in danger of becoming addicted to narcotics and his commitment should be served in the California Rehabilitation Center (CRC).

Defendant was advised it was up to CRC to determine whether to accept him. Defendant agreed to the terms of the plea and pled no contest. The issue of defendants eligibility for CRC came up again at the sentencing hearing, and the court specifically inquired of defense counsel whether any of defendants charges -- assault with a deadly weapon, making criminal threats, or resisting an officer -- made him ineligible for CRC. Defense counsel assured the court that defendant was not statutorily ineligible for CRC.

Defendant was sentenced to three years, in accordance with the plea agreement, doubled to six because of the prior strike. The parties stipulated he was in danger of becoming addicted to narcotics and the sentence was stayed to order his commitment to CRC.

On June 30, 2006, the Department of Corrections, California Rehabilitation Center, sent a letter to the court requesting it Expedite Vacating of Civil Addict Commitment Per PC  1170.12(A)(4) and W & I 3052. On July 25, 2006, the court stated it put the matter on calendar to see if there was a basis to withdraw the plea. Defense counsel did not argue to withdraw the plea, and acknowledged that defendants CRC commitment had been a longshot. The court lifted the stay and defendant was sentenced to state prison for six years.

Defendant appeals. His request for a certificate of probable cause was denied. ( 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, contending he received ineffective assistance of counsel. In particular, he contends defense counsel assured him there was nothing in his record to prevent CRC from accepting him. He argues it seems impossible to believe that between [his] Attorney, The Probation Department, the District Attorney and [the] Judge . . . no one knew that by [his] admitting to a prior strike [he] was statutorily ineligible for a C.R.C. commitment.

Defendants argument amounts to a challenge to the validity of his no contest plea. Because defendant did not obtain a certificate of probable cause, he cannot contest the validity of his plea on appeal; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress evidence or issues relating to matters arising after the plea was entered. ( 1237.5; Cal. Rules of Court, rule 8.304(b).)

Having undertaken an examination of the entire record, we find no arguable error that we can address on direct appeal that would result in a disposition more favorable to defendant.^[4]

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS , Acting P.J.

MORRISON , J.

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^[1] All further statutory references are to the Penal Code.

^[2] The facts underlying this conviction are not contained within the record on appeal.

^[3] This summary of facts is taken from the probation report in case No. 05F124.

^[4] On March 21, 2007, we expanded counsels appointment to include assisting defendant in preparing a petition for writ of habeas corpus in the trial court. In the current procedural posture of this case, writ review is the appropriate course. (See, e.g., People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.)