Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. YA066064
TO THE COURT:Quintin Monk (appellant) appeals from the judgments entered following his plea of no contest to one count of paying for prostitution in violation of Penal Code section 266e (count 10) and two counts of robbery in violation of section 211 (counts 5 & 7). The trial court sentenced appellant to the agreed-upon sentence of six years eight months in state prison. On count 10, the trial court imposed the low term of 16 months, doubled to 32 months due to appellant’s prior strike offense (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) On count 5, the trial court imposed one-third the midterm of three years, or one year, doubled to two years due to the prior strike. On count 7, the trial court imposed one-third the midterm, one year, doubled to two years because of the prior strike. The court ordered appellant to pay a total of $208,415 in victim restitution. The trial court dismissed the remaining seven counts.
All further statutory references are to the Penal Code unless otherwise indicated.
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an “Opening Brief” which contained an acknowledgment that she had been unable to find any arguable issues. On May 29, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.
On June 21, 2007, appellant filed a letter in which he stated he wished this court to look over his appeal on the following grounds: (1) his right to a speedy trial was violated; (2) his probable cause declaration was never signed by the judge; (3) two different kinds of cases that occurred on two different occasions were joined, and he received consecutive terms on each case; and (4) he received two strikes for the commercial burglaries, and commercial burglaries are not strike offenses. Appellant made no citations to the record and provided no argument or supporting authority for these issues.
The record shows that appellant was charged with two counts of burglary (§ 459), two counts of receiving stolen property (§ 496, subd. (a)), four counts of robbery (§ 211), and one count of pimping a person under 16 years of age (§ 266h, subd. (b)(2)). It was also alleged that appellant had suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d)), three prison priors (§ 667.5, subd. (b)), and one prior conviction of a serious or violent offense (§ 667, subd. (a)(1)).
The record of appellant’s preliminary hearing shows that the theft charges arose from the burglaries of two jewelry stores. Two African-American men entered the jewelry stores and, in the presence of sales clerks, smashed jewelry cases with a hammer and took the jewelry away in a bag. Some of the jewelry was later pawned by appellant at two different pawn shops. A security guard at one of the burglary locations saw two African-American men enter a car whose description and license plate was later tracked to Hertz rental cars. Appellant was seen driving the car and parking the car at the named renter’s residence, and appellant’s fingerprint was found on the driver’s-side rear door.
After a hold was placed on the pawned jewelry, appellant went to the police station to inquire why this was done. Appellant was arrested after an interview. Appellant claimed he had bought the jewelry on the street. Appellant’s cell phone records showed that appellant used his cell phone less than a minute before one of the robberies at a location a block away from the jewelry store.
The pandering charge arose from appellant’s relationship with a 14-year-old girl who told police appellant had advertised on the internet to arrange for sexual liaisons for her, for which she was paid. She gave appellant all of the profit from the sexual encounters.
The record reveals that appellant pleaded no contest to the charges named in the negotiated plea bargain and made no application for a certificate of probable cause before filing an appeal. Section 1237.5 provides, in pertinent part, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal . . . .”
California Rules of Court, rule 8.304(b)(1) provides in pertinent part that “Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere . . . the defendant must file in that superior court—in 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.” Rule 8.304(b)(3) provides “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.” Rule 8.304(4) provides that the defendant need not comply with (1) if the notice of appeal states that the appeal is based on denial of a motion to suppress or grounds that arose after entry of the plea that do not affect the validity of the plea.
All future references to rules are to the California Rules of Court unless stated otherwise.
In People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon), the Supreme Court held that where a defendant is sentenced in accordance with the terms of a plea bargain that provides for a particular sentence and subsequently challenges that sentence on appeal, he must obtain a certificate of probable cause. (Id. at pp. 73, 89.) Panizzon explained that, since the defendant is “in fact challenging the very sentence to which he agreed as part of the plea,” his appeal “attacks an integral part of the plea” and is, “in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and [former] rule 31(d).” (Id. at p. 73.) Panizzon cited with approval the “‘substance-of-the-appeal’” test of People v. McNight (1985) 171 Cal.App.3d 620, 624 (McNight) and the reasoning of that case, in which the defendant challenged the agreed-upon sentence on the ground that consideration of mitigating factors should have resulted in a sentence less than the one the defendant had agreed upon. (Panizzon, supra, at pp. 77, 79.) The McNight court held that a certificate of probable cause was required because the defendant’s contention that a lesser sentence should have been imposed constituted a challenge to the validity of the plea. (Id. at p. 77.) In People v. Mendez (1999) 19 Cal.4th 1084, the California Supreme Court interpreted former rule 31(d), which corresponds to current rule 8.304(b)(1)-(3), and held that section 1237.5 and its implementing rules of court “should be applied in a strict manner.” (People v. Mendez, supra, at p. 1098.)
In the instant case, appellant’s issues on appeal do not solely concern grounds occurring after entry of the plea that do not challenge its validity. In fact, there is only one issue that concerns a ground occurring after entry of the plea. This is appellant’s claim that he “receive[d] two strikes for two commercial burglar[ies] and commercial burglar[ies] are not strikeable offenses.” Since appellant failed to comply with rule 8.304(b)(1), however, his appeal is inoperative and must be dismissed.
In any event, appellant’s claim is factually incorrect in that he did not plead to commercial burglaries but rather to second degree robberies in the instant case. According to section 667.5, subdivision (c)(9) any robbery is considered a violent felony for purposes of the three strikes law. Therefore, in counts 5 and 7, the second degree robberies to which he pleaded, the boxes on the current abstract of judgment are correctly marked to indicate that appellant’s sentences on those two counts are “CONSECUTIVE 1/3 VIOLENT.”
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The appeal is dismissed.