P. v. Romero

Filed 1/30/07 P. v. Romero CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

James B. Peirce, Judge. Dismissed.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Francisco Romero (Romero) appeals the judgment entered following his plea of no contest to the theft and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) and his admission he had previously been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Pursuant to a negotiated plea agreement, the trial court sentenced Romero to 32 months in state prison. We dismiss Romeros appeal as inoperative for failure to obtain a certificate of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Evidence at the preliminary hearing established that at approximately 10:00 p.m. on March 23, 2006, Los Angeles Police Officer John Urban (Urban) was participating in a bait car detail. On such a detail police officers leave a police vehicle in this instance a 1999 white Honda parked, unlocked and running. The officers then wait to see if anyone takes the car.

Approximately 10 minutes after officers parked the Honda at the intersection of Pacific Coast Highway and Neptune Street, Urban observed Romero get into the car, turn on the headlights and drive off. Police officers followed the Honda for approximately two blocks then stopped Romero and took him into custody.

2. Procedural history.

At proceedings held on April 25, 2006, Romero pleaded no contest to the theft and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) and admitted having suffered a 1999 conviction for robbery within the meaning of the Three strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Pursuant to a negotiated plea agreement, the trial court sentenced Romero to the low term of 16 months, then doubled the term in accordance with the Three Strikes law for a total term of 32 months.

On July 13, 2006, Romero, who was represented by counsel, filed a motion to withdraw his plea. At the July 14, 2006 hearing held on the motion, Romero personally addressed the court. He stated he had a history of mental illness and at the time he entered the plea had been under heavy psych medication, had been incoherent and had been [unable to] make . . . decisions for [him]self. Romero argued he had been coerced into taking the deal. In addition, Romero asserted his trial counsel had been ineffective. The trial court denied Romeros motion indicating appointed counsel had been unable to find evidence to support Romeros claims and that it, the court, did not believe Romero.

On July 17, 2006, Romero, acting in propria persona, filed a notice of appeal. Romero again argued he was mentally ill and had not been stabilized on [his] psychiatric medication when [he] agreed to take the deal. The trial court denied the notice, apparently treating it as a petition for a certificate of probable cause.

Pursuant to Romeros request, On October 11, 2006, counsel was appointed to represent him on appeal.

CONTENTIONS

After examining the record, Romeros counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

Romero has filed a supplemental brief in which he argues: (1) He was the victim of entrapment; (2) in imposing sentence, the trial court failed to adequately consider as a mitigating factor his mental state at the time he took the car; (3) his trial counsel was ineffective; and, (4) the trial court was biased.

DISCUSSION

1. Romeros contentions fail to demonstrate reversible error.

a. Romero was not the victim of entrapment.

Romero argues he was entrapped or lured into taking and driving the Honda. He indicates that, after discussing the matter with two female friends, he decided it was unsafe to have an unlocked, unattended, running car parked in a residential area where children were present. In driving the car, his intent was to take it to a safer location, park it and leave it. Romero had no way of knowing the car was a bait-detail car which police had intentionally left unlocked and running.

[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect for example, a decoy program is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime. (People v. Barraza (1979) 23 Cal.3d 675, 689-690, fn. omitted; see also People v. Smith (2003) 31 Cal.4th 1207, 1213 [In California . . . the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense.].)

In the present case, the police officers participated in no overbearing conduct. They simply left a car parked on the street with its engine running and doors unlocked. While a normal law-abiding citizen concerned for the safety of children in the area may have reached into the car and attempted to turn off the engine, it is unlikely such a person would have gotten into the car and driven away. On the facts presented, it cannot be said Romero was the victim of entrapment.

b. The trial court was informed of and properly considered Romeros statement regarding his state of mind at the time he committed the crime.

Romero contends the trial court failed to properly consider as a factor in mitigation his mental state at the time of the crime. However the record reveals that at the plea proceedings Romero personally addressed the trial court, stating, I was minding my own business in front of my house. Theyre the ones who put the car [there] . . . . [] . . . [] . . . They left it on. I took it out of harms way. They left it running. It was dangerous for the children in the area. The trial court responded, Mr. Romero, . . . all youre looking at is yourself and no one else. . . . [T]here wasnt anybody that forced you to get into that car and drive that car away.

We note the trial court was entitled to reject Romeros explanation of his intent in taking the car. It is the function of the trial court to determine Romeros credibility (People v. Avila (2006) 38 Cal.4th 491, 590) and we will not second guess the trial courts finding in this regard. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1162.)

c. Trial counsel was not ineffective.

Romero claims his trial counsel was ineffective because she did not file any motions and failed to assist Romero when he personally addressed the court.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

Our review of the record fails to show trial counsel did not adequately represent Romero. Moreover, even if counsel had been somehow deficient, Romero suffered no prejudice. In exchange for his plea, Romero took advantage of the district attorneys one time offer of a sentence of 32 months in prison. The record indicates that, had Romero chosen to wait until a later date to enter his plea, any subsequent offer by the district attorneys office would have been not less than four years.

d. There is no evidence the trial court was biased.

Romero claims the trial court was biased in that it made inappropriate remarks during the proceedings and inaccurately determined he had an extensive prior record.

Initially, Romero fails to direct us to any particular remarks by the trial court which he considers to have been improper and our review of the record reveals none. With regard to Romeros prior criminal record, the trial court reviewed Romeros probation report and determined Romero had been in the system since 1975 and had served time in prison in 1997, 1999 and 2004. In view of Romeros criminal history, the trial court appropriately determined Romero was not a suitable candidate for a grant of probation and, instead, properly sentenced him to the agreed upon term of 32 months in state prison.

2. Romero failed to obtain a certificate of probable cause.

When a defendant enters a plea of guilty or no contest, he may not bring an appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562.) Although ineffective assistance of trial counsel may be said to be an issue that goes to the legality of the proceedings (In re Chavez (2003) 30 Cal.4th 643, 649, fn. 2), Romeros claim cannot survive his failure to obtain a certificate of probable cause. (Id. at pp. 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097; Pen. Code, 1237.5.) Further, since he failed to obtain a certificate of probable cause, Romeros contentions regarding the trial courts bias and failure to consider the mitigating factor of Romeros intent at the time of the crime are also barred. (In re Chavez, supra, 30 Cal.4th at p. 651.) Finally, Romeros contention he was the victim of entrapment is neither an issue which goes to the legality of the proceedings nor a postplea matter and is thus not appealable. (People v. Mendez, supra, 19 Cal.4th at p. 1096.) Even if this court were to construe Romeros supplemental opening brief as a petition for writ of mandate challenging the trial courts denial of his request for a certificate of probable cause (but see People v. Castelan (1995) 32 Cal.App.4th 1185, 1187-1188), Romero has failed to demonstrate any cognizable error.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Romeros counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Romero pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed as inoperative. (In re Chavez, supra, 30 Cal.4th at pp. 649-651; People v. Mendez, supra, 19 Cal.4th at pp. 1094-1099; Pen. Code, 1237.5.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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