P. v. Williams

Filed 6/26/06 P. v. Williams CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Counsel for Willard Dale Williams has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. We have conducted that review, and finding no arguable issues, affirm the judgment.

Background

Defendant is a man in his 70's with a criminal history stretching back to at least 1975, much of it apparently related to alcoholism. Defendant also has been convicted of two crimes that require him to register as a sex offender: a 1978 conviction of committing a lewd or lascivious act with a child (Pen. Code, § 288[1]) and a 1993 conviction of annoying or molesting a child (§ 647.6). On December 9, 2004, defendant pleaded guilty to a charge that he had failed to register as a sex offender, an offense punishable by imprisonment in state prison for a period of 16 months, two years or three years. (§ 290, subd. (g)(2).) The probation report recommended that defendant be denied probation, noting that defendant's criminal history rendered him presumptively ineligible for probation, that he had not complied with the terms of parole and that he refused to recognize the importance of registering. The court, however, while sentencing defendant to the midterm of two years, suspended execution of sentence and placed defendant on probation for a period of five years on the condition, among others, that he serve 180 days in county jail.

On July 12, 2005, after his arrest for driving without a license and driving while under the influence of alcohol, defendant pleaded guilty to driving while under the influence (Veh. Code, § 14601.2) and admitted that he had violated probation. The matter was referred to the probation department. Three days later, while out on his own recognizance, defendant was arrested for driving while under the influence of alcohol. On September 22, 2005, defendant pleaded guilty to felony driving while under the influence of alcohol (Veh. Code, §§ 23152, subd. (b); 23550, subd. (a)(1)) and misdemeanor failing to register (§ 290, subd. (g)(6)), and admitted to having violated probation. The court denied defendant probation, and sentenced him to the aggravated term of three years for driving while under the influence and a concurrent term of six months for failing to register. The court imposed a section 1202.4 restitution fine of $600 plus a section 1202.45 restitution fine stayed unless parole was revoked. The court also terminated defendant's probation on the December 9, 2004 conviction of failing to register, and sentenced him to a term of eight months to be served consecutively to the three-year term for the current offenses. It imposed a section 1202.4 fine of $200 and a section 1202.45 fine of $200, stayed unless defendant violated parole. The court awarded defendant 157 custody credits.[2]

Discussion

By pleading guilty to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, section 1237.5 and California Rules of Court, rule 30(b), bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or relating to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant has not obtained a certificate of probable cause.

Defendant was represented by counsel during the sentencing proceedings, who made all reasonable and possible arguments on defendant's behalf. Defendant presumptively was ineligible for probation (§ 1203, subd. (e)(4)), and the court acted well within its discretion in determining that there were no unusual circumstances rebutting that presumption. The court's decision to select the aggravated term is supported by defendant's criminal history and his unsatisfactory performance while on probation and parole (Cal. Rules of Court, rule 4.421(b)(2)(3)(4) & (5)), as well as by the fact that he was arrested while released on his own recognizance (see rule 4.21(c)). The court did not abuse its discretion in ordering defendant to pay the restitution fines and restitution to the victim. Defendant was awarded all the credits to which he was entitled.

In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

SWAGER, J.

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[1] All statutory references are to the Penal Code unless otherwise noted.

[2] A separate case, involving checks written on insufficient funds, was dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). Defendant admitted that he had written the checks and was ordered to pay restitution directly to the victim.