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People v. Akkerman

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 7, 2012
B231952 (Cal. Ct. App. Feb. 7, 2012)

Opinion

B231952

02-07-2012

THE PEOPLE, Plaintiff and Respondent, v. DAVID ROBERT AKKERMAN, Defendant and Appellant.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. LA065844)

APPEAL from a judgment of the Superior Court of Los Angeles County. Karen J. Nudell, Judge. Reversed and remanded with instructions.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

Defendant David Robert Akkerman was charged by information with one count of petty theft with a prior theft conviction (Pen. Code, § 666), as well as prior offense allegations (Pen. Code, § 1203, subd. (e)(4)). Defendant entered a no contest plea, admitting one prior theft conviction (Pen. Code, § 484, subd. (a)). The factual basis for the plea is as follows (as established in defendant's probation report): On August 17, 2010, at a Target store in Los Angeles County, store security personnel observed defendant select a piece of luggage and fraudulently return it with an old receipt for a cash refund of $54.86.

Defendant was sentenced on September 8, 2010, to two years in prison, the execution of his sentence was suspended, and he was placed on three years' formal probation with one year in jail. At the time of the offense and sentencing, Penal Code section 666 (hereafter section 666) required proof of only one prior theft conviction. However, on September 9, 2010 (just one day after defendant was sentenced) the statute was amended to require proof of three prior theft convictions before the enhanced penalty would apply. (See former § 666, amended by Stats. 2010, ch. 219, § 15.) On March 9, 2011, defendant's motion to withdraw his plea on the basis of the amendment to section 666 was denied. Defendant admitted to violating his probation, and his suspended sentence was imposed. Defendant filed a notice of appeal challenging the trial court's ruling on his motion to withdraw his plea, and asked the court to issue a certificate of probable cause. His request was denied. An amended notice of appeal was filed on May 5, 2011, purporting to appeal postplea matters not requiring a certificate of probable cause, and a renewed request for a certificate of probable cause was made to the trial court, which was again denied.

Defendant's appellate counsel filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436 (Wende).)The brief included a declaration that counsel reviewed the record and sent a letter to defendant explaining her evaluation of the record. Counsel further declared that she advised defendant of his right, under Wende, to submit a supplemental brief. On September 26, 2011, this court sent defendant notice at his last known address of Wasco State Prison, as well as an alternate address identified in counsel's Wende brief, advising him that he had 30 days to personally submit any contentions or issues that he wished to raise on appeal. The notice sent to Wasco was returned because defendant had been paroled. The letter sent to the alternate address was not returned. No supplemental brief from defendant was received. Even if defendant did not receive the notices sent to him, it was his obligation to report changes of address while his appeal was pending. (See Cal. Rules of Court, rule 8.32.)

On January 10, 2012, we asked the parties to brief the following issues: "(1) What is the effect of the September 2010 amendment to . . . section 666 on David Akkerman's petty theft with a prior conviction and sentence (People v. Vinson (2011) 193 Cal.App.4th 1190); and [¶] (2) What effect, if any, does the failure to procure a certificate of probable cause have on this court's resolution of this appeal? (Pen. Code, § 1237.5.)" Defendant's appointed attorney and respondent filed supplemental letter briefs addressing our inquiry.

The parties agree the amendment to section 666 applies retroactively (People v. Vinson, supra, 193 Cal.App.4th at pp. 1199-1200), and because defendant's judgment was not yet final at the time of the amendment, the amendment applies to him. Nevertheless, the parties contend the failure to obtain a certificate of probable cause prevents defendant from obtaining the benefits of the amendment. (See, e.g., People v. Borland (1996) 50 Cal.App.4th 124, 127, 129-130 [a defendant cannot challenge the factual basis for a plea without first obtaining a certificate of probable cause].) We agree that the amendment to section 666 applies retroactively. (People v. Vinson, at pp. 1199-1200.) We disagree that a certificate of probable cause is required, because the appeal does not challenge the validity of the defendant's plea, but is based on grounds occurring after entry of the plea (the amendment to section 666). (See Pen. Code, 1237.5; California Rules of Court, rule 8.304(b)(4).)

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with instructions to conduct further proceedings as appropriate in light of the retroactive operation of section 666, as amended effective September 9, 2010.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J. WE CONCUR:

RUBIN, Acting P. J.

FLIER, J.


Summaries of

People v. Akkerman

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 7, 2012
B231952 (Cal. Ct. App. Feb. 7, 2012)
Case details for

People v. Akkerman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID ROBERT AKKERMAN, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Feb 7, 2012

Citations

B231952 (Cal. Ct. App. Feb. 7, 2012)