P. v. Tafolla

Filed 3/30/06 P. v. Tafolla CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Via a brief filed pursuant to People v. Wende (1979) 25 Cal.3d 436, appellant appeals from his conviction, after a plea of no contest, to a charge of automobile theft in violation of Vehicle Code section 10851, subdivision (a). Because no certificate of probable cause was obtained, the only issue before us concerns appellant's sentence. We find no error in that regard and hence affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

There was, apparently, a negotiated disposition of this case before any preliminary hearing, and hence the only facts available to us from the scant record before us derive from the probation report. According to that report, appellant was stopped by the Oakland police on April 11, 2005,^[1] because he was apparently driving a stolen car. The defendant denied stealing the car, claiming his third cousin had lent it to him. However, a search of appellant revealed a nine-inch long screwdriver in a sock and a four-inch long screwdriver in one of his pockets.

When interviewed at the police station, appellant denied stealing the vehicle, but this time claimed it was stolen by a fellow gang member in Hayward, but conceded that he drove the car knowing it had been stolen.

The following day, April 12, appellant was charged with one count of automobile theft in violation of Vehicle Code section 10851, subdivision (a). On April 21, he entered a plea of no contest to the charge. The court sentenced appellant to probation for a term of five years on the condition, among other things, that he remain indoors between the hours of 10 p.m. and 6 a.m. for the duration of that period. Appellant objected to the curfew condition, but agreed to abide by it.

Appellant filed a notice of appeal and requested a certificate of probable cause. The certificate of probable cause was denied.

III. DISCUSSION

Because of appellant's plea of no contest and the lack of any certificate of probable cause, our review is, pursuant to the clear mandates of Penal Code section 1237.5 and California Rules of Court, rule 30(b), limited to the sentence imposed on appellant.^[2] That sentence was, as noted, a five-year probationary term, with a curfew condition. In view of the fact that appellant (1) admitted he was a gang member (2) knew he was, when apprehended, driving a car stolen by a fellow gang member, (3) was, according to the probation report, on court probation at the time of the offense charged, (4) had three grants of probation in Alameda County in the course of which he â€