Opinion
A117345
5-30-2008
THE PEOPLE, Plaintiff and Respondent, v. MAURICE SKINNER, Defendant and Appellant.
NOT TO BE PUBLISHED
Maurice Skinner appeals from a judgment of conviction and sentence imposed after he pleaded guilty to multiple counts in a murder case. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. Skinner has filed supplemental written argument. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
Skinner, along with co-defendants Donal Hendrix and Damone Carr, were charged in an information with the following: count 1, murder of Laron Mercado with malice aforethought (Pen. Code, § 187, subd. (a)); count 2, attempted murder of Kenneth James (§§ 187, subd. (a)/664); count 3, attempted murder of Olutokumbo Oluwole (§§ 187, subd. (a)/664); and count 4, attempted murder of Chandale Shannon (§§ 187, subd. (a)/664). As to Skinner only, the information charged count 6, possession of firearm by a convicted felon (§ 12021, subd. (a)(1)), and count 8, possession of cocaine base while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a)).
Except where otherwise indicated, all statutory references are to the Penal Code.
The information also alleged, as to counts 1, 2 and 4, that Skinner personally used a firearm (§§ 12022.5, subd. (a)(1); 12022.53, subd. (b)), was armed with an assault weapon (§ 12022, subd. (a)(2)), and was armed with a firearm (§ 12022, subd. (a)(1)). As to count 3, it was alleged that Skinner personally used a firearm (§§ 12022.5, subd. (a)(1); 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), was armed with a firearm (§ 12022, subd. (a)(1)), and personally used an assault weapon (§ 12022.5, subd. (b)(2)), making the offense a serious felony (§ 1192.7, subd. (c)(8)) and a violent felony (§ 667.5, subd. (c)(8)). In addition, the information alleged that Skinner had suffered a prior conviction (§ 667.5, subd. (b)) and a prior conviction for violating Health and Safety Code section 11351.5.
Skinner entered a plea of not guilty to all counts and denied the allegations.
An amended information was identical to the original, except that it added allegations that the attempted murders alleged in counts 3 and 4 were committed willfully, deliberately and with premeditation within the meaning of section 664, subdivision (f), and constituted serious felonies under section 1192.7, subdivision (c).
A. Factual Summary
The probation departments presentence report described the events underlying the charges as follows. On March 15, 2003, victims James and Mercado were visiting friends, including victims Shannon and Oluwole (also known as Taz) at a house in Oakland. Around 11:20 p.m., while they were in front of the house, a blue van stopped in the middle of the street. Skinner and co-defendants Hendrix and Carr got out of the van. Skinner had an AR-15 assault rifle with a magazine capable of holding 30 rounds, and Hendrix had a Luger 9mm P85 semi-automatic pistol. Skinner and Hendrix accused James, Mercado, Shannon and Oluwole of taking an Uzi, and continued to accuse them despite their denials. Hendrix shot James twice and also shot Mercado twice in the back of his head. Shannon and Oluwole fled, and Skinner ran after them, firing 11 rounds at them with the AR-15 assault rifle.
An uninvolved witness called the police after seeing Skinner and Hendrix get out of the van with firearms. Oakland Police Officer Tamara Cundy was dispatched to the scene; Shannon and Oluwole told her that men in a blue van shot their friends and were trying to shoot them. Officer Cundy saw the blue van approach and pass by, and she reported her observations on her police radio. Oakland Police Officer Barney Rivera responded to her location and observed the van, which he pursued. In the course of the pursuit, Skinner got out of the van and ran into nearby residential property. Skinner was found hiding alone in the attic of Hendrixs house and was arrested. Officers stopped the van, with Hendrix in the front passenger seat, and arrested him. The Luger 9mm pistol was found on the floor of the van near Hendrixs seat. Carr was arrested 10 months later.
B. Negotiated Disposition
A jury trial began on October 16, 2006. On November 14, 2006, Skinner entered into a negotiated plea agreement, by which he acknowledged his waiver of his constitutional rights, withdrew his not guilty plea, entered pleas of no contest on count 3 (attempted murder of Oluwole), guilty on count 4 (attempted murder of Shannon), no contest on count 6 (possession of firearm by convicted felon), and no contest on count 8 (possession of cocaine base while armed with a loaded and operable firearm), and admitted the section 12022.53 subdivision (c) allegation and his two prior convictions. The court made a factual finding of guilt. Pursuant to the terms of the plea agreement, the remaining counts and allegations were dismissed.
According to the reporters transcript, the prosecutor indicated that Skinner was "pleading guilty or no contest to the use clause pursuant to 12022.53(c) of the Penal Code" and would "receive a term of 20 years for violation of the use clause, 12022.53(c)." Although subdivision (c) of section 12022.53 pertains to "discharge" of a firearm rather than "use," it is clear from the record (including Skinners written plea agreement) that his plea was to subdivision (c), which provides for the 20-year enhancement to which he stipulated.
Skinners negotiated sentence was described by the prosecutor as follows: "On count 3, Mr. Skinner will receive the aggravated term of nine years in state prison. Consecutive to that, he will receive a term of 20 years for violation of the use clause, 12022.53(c). [¶] In count 4, he will be sentenced to one third the mid term, which is two years, four months. The sentence he receives on count 4 will run consecutive to the sentence he received in count 3. [¶] In count 6, he would receive a state prison sentence of one third the mid term, or eight months. That term is to run consecutive to the sentences he receives in counts 3 and 4. [¶] And count 8, he will receive a state prison sentence of one year, one third the mid term. That sentence is to run consecutive to the sentences he receives in counts 3, 4 and 6. [¶] Consecutive to that, he will receive a one-year state prison—Im sorry, a one-year state prison sentence with the enhancement for prior conviction, first prior conviction. And consecutive to that, he would receive an additional one-year state prison sentence for the prior conviction suffered as alleged in prior number two for 11351.5. [¶] The total term of imprisonment is 35 years." (Italics added.) Both Skinner and defense counsel agreed that this was the negotiated disposition.
C. Sentence
On March 8, 2007, pursuant to the negotiated disposition, the court sentenced Skinner to an aggregate term of 35 years in prison. As to count 3 (attempted murder of Oluwole), the court imposed the upper term of nine years, plus a consecutive 20-year term for the section 12022.53, subdivision (c) enhancement that he admitted. As to the remaining counts, the court imposed the mid-term of two years four months on count 4 (attempted murder of Shannon), the mid-term of eight months on count 6 (possession of firearm by convicted felon), and the mid-term of one year on count 8 (possession of cocaine base with loaded operable firearm), to be served consecutively to the sentence on count 3 and to each other. The court imposed, consecutive to those terms, one-year terms for each of the two prior convictions Skinner had admitted.
Skinner filed a notice of appeal, representing that his appeal was based on the sentence or other matters occurring after his plea. There was no request for a certificate of probable cause, and no certificate was issued.
II. DISCUSSION
Skinners counsel has represented that he served Skinner with the opening brief on appeal and advised him of his right to submit supplemental written argument on his own behalf within 30 days. Skinner filed supplemental written argument.
By handwritten letter dated May 9, 2008, Skinner contends the following as grounds for appeal: "Petitioners counsel was ineffective in failing to conduct a reasonable pre-trial investigation," violating his right to counsel; "Petitioner was convicted on the basis of a guilty plea that was the product of ineffective assistance of counsel;" "Jury Selection was unconstitutionally tainted when the prosecutor excluded qualified jurors on the basis of race;" "Petitioner[]s conviction to counts 3 and 4, 187/664 was obtained as the results [sic] of evidence that is insufficient to persuade a properly instructed, reasonable jury of his guilt beyond a reasonable doubt;" "The State failed to establish the unavailability of an absent witnesses [sic] before testimony of that witness was used to obtain Petitioners conviction;" "Petitioners sentence was increased on the basis of facts found by the Judge rather than by Jury;" "Information used to convict Petitioner was obtained as the results of the Prosecutions deliberate interrogation of an in-custody witness/defendant after defendant had been charged and the right to counsel had attached" and "Prosecutor would not allow Appeallants [sic] investigator to interview with defendant" in violation of his constitutional rights; "In regards of counts 3 and 4, 187(A) 664, counts should have been dismissed at pre-trial exam" because Shannon testified that he did not see anyone firing at him; "Limini [sic] motions were not established by Judge prior to guilty plea which was the basis appellant was forced to enter guilty plea" in violation of due process; "Petitioner was given unconstitutional multiple sentences for committing a single act;" and "Denial of severance from accomplices was prejudice [sic] to appellant [sic]."
None of these issues is cognizable on appeal, because Skinner did not obtain a certificate of probable cause.
Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, 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 with the clerk of the court." (Italics added.) This provision should be strictly enforced. (People v. Mendez (1999) 19 Cal.4th 1084, 1098, 1100.)
Two types of issues may be raised notwithstanding the absence of a probable cause certificate: certain search and seizure issues; and issues regarding proceedings held subsequent to the plea for the purposes of determining the degree of the crime and the sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).) Of all the issues Skinner raises, only two ostensibly pertain to his sentence: his contentions that his sentence was "increased on the basis of facts found by the Judge rather than by Jury" and that he was "given unconstitutional multiple sentences for committing a single act."
However, where the parties have agreed to a specific sentence as part of the plea agreement, a challenge to that sentence generally constitutes a challenge to the validity of the plea, and a certificate of probable cause must be obtained. (Panizzon, supra, 13 Cal.4th at p. 79 [challenge to a sentence that was imposed as part of a plea bargain was a challenge to the validity of the plea itself, requiring defendant to obtain a probable cause certificate]; People v. Vargas (2007) 148 Cal.App.4th 644, 651-652 ["In other words, if the defendant agreed to a specific sentence as part of his plea agreement the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause"]; People v. Young (2000) 77 Cal.App.4th 827, 832 [by claiming the maximum sentence he received pursuant to his plea agreement was unconstitutional, appellant was attacking validity of plea and had to obtain probable cause certificate].)
Here, Skinner challenges the sentence to which he expressly agreed as part of his plea agreement. He neither requested nor obtained a certificate of probable cause. Because he expressly agreed to imposition of an aggravated sentence on count 3, and separate consecutive sentences on each of the other admitted counts, those matters constituted express terms of his plea agreement, and the absence of a certificate of probable cause precludes his challenge. (Panizzon, supra, 13 Cal.4th at pp. 74, 79; see also People v. Hester (2000) 22 Cal.4th 290, 295 [in appeal of unauthorized sentence, no error even if trial court acted in excess of its jurisdiction, where defendant pleaded guilty in return for a specified sentence]; People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1058 [acceptance of plea bargain implies that defendant waived his rights under rules that would have required a more lenient sentence]; accord People v. French (2008) 43 Cal.4th 36, 42-46, 49 [probable cause certificate unnecessary to challenge upper term where defendant agreed to maximum aggregate sentence of 18 years, rather than agreeing specifically to the upper term on a particular count].)
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur.
JONES, P. J.
STEVENS, J.