P. v. Morris

Filed 3/6/07 P. v. Morris 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from a judgment of the Superior Court of Los Angeles County, John Meigs, Judge. Dismissed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Tommy Ray Morris (Morris) appeals the judgment (order revoking probation) entered following his plea of no contest to carjacking (Pen. Code, 215, subd. (a))^[1]in Los Angeles County Superior Court Case No. YA061272, and the judgment entered following his plea of no contest to receiving stolen property ( 496, subd. (a)) in Los Angeles County Superior Court Case No. YA064866. Pursuant to negotiated plea agreements, the trial court sentenced Morris to a total term of nine years in state prison. We dismiss Morriss appeals as inoperative for failure to obtain certificates of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

1. Superior Court Case No. YA061272

Evidence at the preliminary hearing held on June 15, 2005 indicated that at approximately 10:00 p.m. on May 13, 2004, Shirnee Cross (Cross) pulled into her driveway on Evergreen Street in Inglewood and parked her Honda Civic. As she was locking the car doors, two men approached Cross and one of the men pulled out a handgun. Cross could not remember which, but one of the two men told Cross to give him the keys to her car. Frightened, Cross handed her car keys to the man. After the two men then took her purse and cell phone, they got into Crosss Honda and drove off.

At approximately 10:50 p.m. on May 17, 2004, Inglewood Police Officer Rex Vian received a call from Hawthorne police officers who indicated they had detained three men suspected of participating in the car-jacking of Crosss car. Among the men being held was Morris. After he was transported to the Inglewood Police Station, Morris told Officer Vian that he and one of his homeboys had approached Cross, taken her car keys, purse and cell phone, then driven away in her Honda Civic.

At proceedings held on June 30, 2005, Morris was charged by information with carjacking in violation of section 215, subdivision (a), during the commission of which he personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.53, subdivision (b), and second degree robbery in violation of section 211, during the commission of which he personally used a firearm within the meaning of section 12022.53, subdivision (b).

On August 18, 2005, Morris entered into a negotiated plea agreement under the terms of which he pleaded no contest to the charge of carjacking in exchange for a suspended sentence of the upper term of nine years in prison. After being given proper advisements, Morris entered his plea. The trial court then sentenced Morris to nine years in state prison, suspended the sentence and placed Morris on three years of formal probation. Pursuant to the plea agreement, the trial court dismissed the count alleging Morris had committed second degree robbery and the allegations Morris had personally used a firearm.

On March 14, 2006, the trial court received notice that Morris was possibly in violation of his probation in that he had been arrested and booked for the crimes of grand theft of an automobile in violation of section 487, subdivision (d)(1), driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer in violation of Vehicle Code section 2800.2, failing to stop after damaging property in violation of Vehicle Code section 20002, subdivision (a), and driving without a valid drivers license in violation of Vehicle Code section 12500, subdivision (a).

Probation revocation proceedings were held on April 5, 2006. Morris, however, failed to appear. Accordingly, the trial court revoked Morriss probation and issued a bench warrant for his arrest.

Morris appeared at proceedings held on May 8, 2006. At that time, the trial court recalled the bench warrant for his arrest, but ordered Morriss probation to remain revoked.

2. Superior Court Case No. YA064866

The evidence at the May 18, 2006 preliminary hearing indicated that on April 21, 2006, the home of Mose C. Brooks (Brooks) was burglarized. Among the items taken from Brookss home were his checkbook, a $100 savings bond, a bank statement and a credit card statement.

On May 4, 2006, Inglewood Police Officer Cesar Jurado (Jurado) was on patrol in the area of Manchester Boulevard and Inglewood Avenue when he observed Morris cross Inglewood Avenue outside of a crosswalk. Morris caused a car to apply its brakes and slow down to avoid hitting him. Jurado stopped Morris, ran a check for warrants and discovered Morris had an outstanding warrant for $50,000 for a carjacking violation and was on probation. A search of Morris revealed in his back pocket a checkbook, a Citibank credit card, a bank statement and a $100 United States savings bond, all in the name of Mose C. Brooks. After finding these items, Jurado took Morris into custody.

On June 2, 2006, an information was filed alleging that on May 4, 2006, Morris received stolen property in violation of section 496, subdivision (a). It was further alleged Morris had suffered a prior serious or violent felony conviction, carjacking, within the meaning of section 1170.12, subdivisions (a) to (d), the Three Strikes law. Morris entered a plea of not guilty to the charge and denied all enhancements, allegations, and priors.

At proceedings held on June 7, 2006, Morris entered into a negotiated plea agreement under the terms of which he was to plead no contest to the charge of receiving stolen property, the People would withdraw the Three Strikes prior conviction allegation and the trial court would sentence Morris to the middle term of two years in state prison, the two-year term to run concurrently with any sentence imposed in the carjacking case. After receiving proper advisements, Morris entered a plea of no contest to the charge of receiving stolen property.

3. Sentencing in Case Nos. YA061272 and YA064866

In accordance with the negotiated plea agreement in case No. YA064866, the trial court sentenced Morris to a term of two years in state prison. Then, based on his conviction of receiving stolen property, the trial court found Morris to be in violation of his probation in the carjacking case, No. YA061272, and imposed the previously suspended upper term of nine years in prison, the term to run concurrently with the two-year sentence imposed in case No. YA064866.

4. Notices of Appeal

Morris timely filed notices of appeal from both cases on August 1, 2006.

5. Morris Failed to Obtain Certificates 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, italics added.) Here, Morris requested certificates of probable cause in both cases, No. YA061272 and No. YA064866, asserting his trial counsel had been ineffective. On August 1, 2006, the trial court denied Morriss requests for certificates of probable cause.

CONTENTIONS

We appointed counsel to represent Morris on these appeals. After examination of the records, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the records. By notice filed November 1, 2006, the clerk of this court advised Morris to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. In an order filed by this court on November 30, 2006, the time within which Morris could submit grounds of appeal he wished considered was extended to January 2, 2007. However, no response has been received to date.

APPELLATE REVIEW

We have examined the entire record in each matter and are satisfied Morriss 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 Morris pleaded no contest and failed to obtain certificates of probable cause, the appeals must be dismissed as inoperative. (In re Chavez (2003) 30 Cal.4th 643, 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1094-1099; 1237.5.)^[2]

DISPOSITION

The appeal from the judgment (order revoking probation) entered in superior court case No. YA061272 is dismissed.

The appeal from the judgment entered in superior court case No. YA064866 is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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

^[2] In view of the fact the upper term was imposed for Morriss conviction of carjacking, appointed appellate counsel could have argued the United States Supreme Courts case in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856; 2007 WL 135687], is applicable. However, the contention would have been without merit. By accepting the bargained for suspended sentence of nine years in prison in exchange for a grant of probation and dismissal of allegations Morris committed second degree robbery and personally used a firearm, Morris waived any claim imposition of the upper term was improper. (See People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Buttram (2003) 30 Cal.4th 773, 783.)