Filed 9/19/18 P. v. Mitchell CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Steven Mitchell appeals from a judgment following his guilty pleas to auto burglary (Pen. Code, § 459)[1] and misdemeanor participation in a criminal street gang (§ 186.22, subd. (a)). Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellate counsel advised appellant of his right to file a supplementary brief to bring to this court’s attention any issue he believes deserves review. (People v. Kelly (2006) 40 Cal.4th 106.) Appellant has not filed such a brief. We have reviewed the record, find no arguable issues, and affirm.

BACKGROUND

In July 2016, an information was filed charging appellant with five counts of auto burglary (§ 459), one count of petty theft (§ 484, subd. (a)), four counts of grand theft (§ 487, subd. (a)), and five counts of felony participation in a criminal street gang (§ 186.22, subd. (a)). As to all counts except the criminal street gang counts, the information alleged appellant committed the crimes for the benefit of a criminal street gang (§ 186.22, subds. (b)(1), (d)). The information also charged counts against two codefendants.

In September 2016, appellant filed a motion to suppress photographs of himself obtained by police without a warrant from the Instagram accounts of third parties. At an evidentiary hearing on the motion, a law enforcement officer testified the photographs were screenshots from Instagram accounts that were either public or private (the officer could not remember which); if private, the police obtained the screenshots by requesting to follow the account without identifying themselves as law enforcement officers, and having the request granted by the account owner. Defense counsel conceded appellant had not established the accounts were his, but argued he nonetheless had a reasonable expectation of privacy in photographs of himself appearing on a private Instagram account, and the account owners did not knowingly consent to share the photographs with law enforcement. The trial court denied the motion, finding appellant failed to establish a legitimate expectation of privacy in a third party’s Instagram account or, even if appellant were the owner of one of the accounts, he had no legitimate expectation of privacy in photographs he voluntarily shared with others.

In December 2016, appellant pled guilty to one count of auto burglary and one count of misdemeanor participation in a criminal street gang, as well as a count in a separate case. The plea agreement provided for a stipulated three-year split sentence on the auto burglary count, with two years in county jail and one year of mandatory supervision, and a concurrent one-year sentence on the criminal street gang count. The plea agreement also provided for appellant to stay away from a specified area in San Francisco and from several identified individuals; register as a gang member; pay any victim restitution; and pay various fines and fees. The court subsequently sentenced appellant pursuant to the plea agreement.

Appellant filed a notice of appeal, and the trial court issued a certificate of probable cause.

DISCUSSION

Because appellant pled guilty, the scope of reviewable issues is restricted to the motion to suppress; matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea; and post-plea sentencing issues. (§ 1538.5, subd. (m); People v. Voit (2011) 200 Cal.App.4th 1353, 1364.) “The issuance of a certificate of probable cause pursuant to section 1237.5 does not operate to expand the grounds upon which an appeal may be taken . . . .” (Voit, at p. 1364.)

The motion to suppress was properly denied. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365 [“ ‘[a] defendant has the burden to establish a legitimate expectation of privacy in the place searched,’ ” considering factors including “ ‘ “ ‘ “whether the defendant has a [property or] possessory interest in the thing seized or the place searched [and] whether he has the right to exclude others from that place” ’ ” ’ ”].)

Appellant was adequately represented by legal counsel throughout the plea proceedings. Defense counsel admonished appellant about the constitutional rights he was waiving by entering a guilty plea, the court confirmed appellant understood those rights, and the court found appellant freely and intelligently waived his rights. Defense counsel stipulated there was a factual basis for the plea. The sentence was consistent with the plea agreement. The sentencing credits and fees were proper.

DISPOSITION

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.

(A150999)