P. v. Ortiz

Filed 12/22/09 P. v. Ortiz CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Jonathan B. Conklin, Judge.

Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Levy, A.P.J., Gomes, J., and Kane, J.

Appellant, Gary Joseph Ortiz, pled guilty to voluntary manslaughter (Pen. Code, 192, subd. (a))^[1]and admitted a gang enhancement (Pen. Code, 186.22, subd. (b)(1)). On October 22, 2008, the court sentenced Ortiz to an aggregate 21-year term, the aggravated term of 11 years on his manslaughter conviction and a 10-year gang enhancement. On appeal Ortiz contends: 1) the court abused its discretion when it imposed the aggravated term on his voluntary manslaughter conviction; and 2) he was denied the effective assistance of counsel. We will affirm.

FACTS

On January 28, 2007, Ortiz, Daniel Orozco, and other gang members confronted Eliot Flores at a park in Sanger. Orozco then pulled out a hand gun and shot Flores several times. Flores died at the scene.

On May 17, 2007, the district attorney filed a second amended complaint charging Ortiz with murder (count 1/ 187, subd. (a)) with a gang enhancement ( 186.22, subd. (b)(1)) and street terrorism (count 2/ 186.22, subd. (a)).

On September 10, 2007, the prosecutor amended count 1 to charge Ortiz with voluntary manslaughter. Ortiz then entered his plea in this matter in exchange for the dismissal of the remaining count. In addition to executing a Felony Advisement, Waiver of Rights, and Plea Form, Ortiz, and his defense counsel, signed a Plea Agreement Attachment form and a Waiver of Appellate Rights form. Paragraph five of the attachment stated, Defendant will be sentenced to 21 years in state prison: The aggravated term of 11 years for the Voluntary Manslaughter, plus an additional and consecutive 10 years for the Gang Enhancement. The Waiver of Appellate Rights Form, executed by Ortiz, in pertinent part, stated, I understand that my guilty plea will result in a determinate sentence of twenty one years.

On October 22, 2008, in sentencing Ortiz to an aggregate term of 21 years, the court noted, without objection, that, [t]he agreed or stipulated sentence is 21, which is comprised of 11 years on the 192, and 10 consecutive years on the 186.

DISCUSSION

Ortiz contends his waiver of his appeal rights was not valid because the waiver was not included in the change of plea form. Similarly, he contends that his stipulation to a 21-year term in the attachment to his change of plea form and his Waiver of Appellate Rights form were not valid because neither he, nor his defense counsel, attested to the validity of these forms at the change of plea hearing. Ortiz further contends that the trial courts statements at sentencing indicate that it did not understand it had discretion to impose a term less than the upper term on his manslaughter conviction. Thus, according to Ortiz, the court abused its discretion when it imposed the 11-year upper term on his conviction for this offense. Ortiz also contends his defense counsel provided ineffective representation because he did not alert the court that Ortiz did not stipulate to a 21-year term. Respondent raises several counter contentions including that Ortizs claim is not cognizable on appeal because he did not obtain a certificate of probable cause. We agree with this latter contention and we will conclude that Ortizs challenge to his sentence is not cognizable on appeal because he did not obtain a certificate of probable cause.

Preliminarily, we reject Ortizs contention that his plea agreement did not provide for an aggregate stipulated 21-year term. Ortiz and his counsel both signed the Plea Agreement Attachment form and the Waiver of Appellate Rights form that were executed in conjunction with Ortizs change of plea form. The attachment and Waiver of Appellate Rights form each clearly indicate that as part of his plea bargain, Ortiz agreed to a stipulated term of 21 years, the aggravated term of 11 years on his manslaughter conviction and a 10-year enhancement term. Further, neither Ortiz, nor his counsel, objected or expressed surprise when the court stated at Ortizs sentencing hearing that it was imposing the stipulated term of 21 years.

Ortiz cites the courts statement during the change of plea proceedings that under the plea agreement he could serve up to 21 years to argue that this shows the court his plea was an open plea and not one for a stipulated sentence. Ortiz reads too much into this statement. All the court did through this statement was inform Ortiz of the maximum term his plea subjected him to as it was required to do (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605) and, which also happened to be the stipulated term. The courts statement, however, did not affect the validity of Ortizs agreement to a stipulated term of 21 years as memorialized in the forms mentioned above. Further, Ortiz waived any error in the courts failure to advise him that his plea bargain required the court to sentence him to an aggregate 21-year term by his failure to object to this term in the trial court. (People v. Walker (1991) 54 Cal.3d 1013, 1023.)

We also reject Ortizs contention that his agreement to a stipulated term in the two documents at issue was not controlling because neither he nor his counsel attested to their validity. In support of this contention, Ortiz cites People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon). Panizzon held that a defendant can waive his rights through a waiver form and the court can rely on that form in lieu of providing personal admonishments unless the trial court has reason to believe the defendant does not fully comprehend his rights, [in which case,] the trial court [must] conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights. [Citation.] (Id. at p. 83.) In concluding that the waiver of appeal rights in that case was valid, the Panizzon court noted, among other things, that the defendant and his attorney both attested to the documents valid execution. (Id. at p. 84.)! It is apparent from the foregoing discussion that Panizzon did not hold that a defendant and his counsel must attest on the record to a documents valid execution in order for a waiver of rights contained in the document to be valid. In any event, Panizzon is inapposite because the holding discussed above addressed the validly of a defendants waiver of a statutory right, i.e. his right to appeal. Here, the issue is whether Ortiz agreed to a stipulated 21-year term as part of his plea bargain.

In People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton) the court stated,

Penal Code section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such appeal. [Citation.] Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citation.]

The statutory requirement and its exceptions are embodied in rule 30(b)(4) of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless the notice of appeal states that the appeal is based on: [] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [] (B) grounds that arose after entry of the plea and do not affect the pleas validity. (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).)

In Shelton the Supreme Court held that a challenge to a stipulated term in a plea agreement was a challenge to the validity of the plea, required a defendant to obtain a certificate of probable cause, and that failure to do so required the dismissal of the appeal. (Shelton, supra, 37 Cal.4th at p. 771.) Ortiz did not comply with section 1237.5 by seeking and obtaining a certificate of probable cause. In accord with Shelton, we conclude that Ortizs challenge to his 21-year stipulated term is not cognizable on appeal.^[2]

DISPOSITION

The judgment is affirmed.

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

^[2] In order to prove ineffective assistance of counsel, a defendant must show that counsels performance fell below an objective standard of reasonableness under prevailing professional norms and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Since we have concluded that Ortizs plea bargain provided for a stipulated 21-year term, defense counsel did not provide ineffective representation by his failure to object to the imposition of this term; nor can Ortiz show that he was prejudiced by the failure to do so. Accordingly, we also reject Ortizs ineffective assistance of counsel claim.