Filed 10/10/17 P. v. Spears CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Dominique Xavier Spears appeals from a restitution order entered pursuant to a plea of no contest to one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), one count of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) and admission of an enhancement that the commission of second degree commercial burglary occurred while released from custody (Pen. Code, § 12022.1). All other charges were dismissed. In accordance with the negotiated disposition, the trial court sentenced defendant to a total term of three years in state prison (with 297 days of presentence credit) and imposed various fines and fees. Defendant entered a Harvey[1] waiver regarding the restitution to victims of the dismissed counts and the amount owed was put over for further proceedings.

His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.

Penal Code section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under Penal Code section 1538.5, subdivision (m); and (2) post-plea sentencing issues. (See People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant did not make a suppression motion. Nor did he apply for a certificate of probable cause. He is therefore not able to challenge the validity of his plea or any other matter that preceded its entry. (People v. Cole (2001) 88 Cal.App.4th 850, 868.)

The restitution order, though issued post-plea, was an essential part of and incorporated into defendant’s plea agreement. Defendant, represented by counsel, executed a plea and waiver of rights form, and the trial court questioned defendant directly to ensure he understood the proposed disposition and entered into it freely and voluntarily. Defendant acknowledged he was to pay all restitution in connection with the counts, including all those that had been dismissed. Defense counsel concurred as to the Harvey waiver. The court then set a restitution hearing date as to the amount owed, and defendant personally waived his appearance at the hearing. Defense counsel thereafter appeared at the hearing. After briefing and argument, the trial court ordered $13,774 in restitution to the victim, slightly less than the amount requested, and also ordered $30,121.28 in restitution in connection with the dismissed matter.

Disposition

Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.

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Banke, J.

We concur:

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Humes, P.J.

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Margulies, J.

A150272, People v. Spears