P. v. VonRekowski
Filed 3/14/07 P. v. VonRekowski CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER VonREKOWSKI, Defendant and Appellant. | A115190 (Lake County Super. Ct. No. CR903915) |
Defendant appeals from a judgment following his plea of guilty and imposition of sentence. His 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; see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY[1]
The victim of the offense, defendants estranged wife Laurie VonRekowski, called the Clearlake police on February 7, 2005, to report that defendant had contacted her in violation of a court order. While the victim spoke with police officers, defendant called her, expressed animosity, and stated he was going home and would call again. Before she hung up, the victim conveyed to defendant that he was violating the restraining order, and advised him not to call her again. Momentarily, defendant called the victim again, and she once more directed him to leave her alone.
The victim told police officers that defendant had previously arrived at her residence, honked his horn and yelled obscenities. She also stated that on another occasion defendant had attempted to run her off the road with his car and asserted he would rip her head off. The victim expressed that defendant was in need of a substantial amount of substance abuse counseling.
Defendant claimed in a written statement to the court and in a probation interview that he had the right to contact the victim during a safe exchange of their children. He accused the victim of making untrue statements about him.
Following defendants entry of a negotiated plea of guilty to felony stalking (Pen. Code, 646.9, subd. (a)),[2] and denial of his motion to withdraw the plea, he was denied probation and sentenced to the middle term of two years in state prison. Defendant was granted 871 days of presentence custody credits and released from custody on parole; he was also ordered to pay a $400 restitution fine ( 1202.4, subd. (b)), a $400 parole revocation fine ( 1202.45), and a $20 court security fee.
Notice of appeal was timely filed. Appellants application for a certificate of probable cause was granted.
DISCUSSION
Penal Code section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such appeal. [Citation.] Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citation.] [] The statutory requirement and its exceptions are embodied in rule 30(b)(4) of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless the notice of appeal states that the appeal is based on: [] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [] (B) grounds that arose after entry of the plea and do not affect the pleas validity. (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.)[3]
A defendant seeking appellate review following a no contest plea must fully and timely comply with both section 1237.5 and rule 30(b). (People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. Young (2000) 77 Cal.App.4th 827, 829.) Defendant filed an application for a certificate of probable cause, based upon a claim of lack of a knowing and voluntary plea following a finding of the restoration of his competency to stand trial. The certificate of probable cause was granted, so defendant is also entitled to obtain review of the validity of the plea in this appeal. (People v. Jones (1995) 10 Cal.4th 1102, 1112, fn. 5; People v. Clark (1996) 51 Cal.App.4th 575, 580.)
We find no arguable search and seizure issues. Appellant did not make a motion to suppress evidence pursuant to section 1538.5, and the record does not reveal any search and seizure issues to be considered.
Upon review of the record, and particularly the transcript of the negotiated plea, we conclude that appellant was thoroughly and accurately advised by the court and his counsel before entry of the plea, and freely exercised his judgment in entering into the plea, as the trial court found.[4] We find nothing in the record to indicate that defendant lacked competence or understanding to enter the plea.
There are no sentencing errors. In imposing sentence, the trial court properly considered evidence in the record, including the information in the probation report, and the argument of counsel. The denial of probation was in accord with the recommendation of the probation report and supported by a statement of reasons that are in turn supported by the evidence. The imposition of the middle term of two years was consistent with the negotiated plea, and did not require a further statement of supporting reasons. (People v. Sutton (1980) 113 Cal.App.3d 162, 165166.) Concurrent terms were imposed on the misdemeanor counts for which probation was terminated. The court was justified in imposing the fines and court security fee. No error in the calculation of presentence custody credits is established.
Appellant was represented by counsel throughout the proceedings.
After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.
__________________________________ Swager, J. | |
We concur: __________________________________ Marchiano, P. J. __________________________________ Margulies, J. |
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[1] Since the present appeal is taken from a no contest plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation report.
[2] The guilty plea was to the lesser included offense of the charge in count 1 of stalking in violation of a court order (Pen. Code, 646.9, subd. (b). Defendant also admitted violations of probation in other cases as a result of his failure to obey all laws. Pursuant to the negotiated disposition, the remaining charges and special allegations against defendant were dismissed. All further statutory references are to the Penal Code, unless otherwise indicated.
[3] The current version of rule 30(b) of the California Rules of Court, is rule 8.304(b) (effective Jan. 1, 2007), which provides (1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior courtin addition to the notice of appeal required by (a)the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [] (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. [] (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal Inoperative, notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. [] (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [] (B) Grounds that arose after entry of the plea and do not affect the pleas validity. [] (5) If the defendants notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).
[4] A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 16161617.) Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea. (In re Vargas, supra, at p. 1142.)
