Opinion
C085035
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN JAMES BERGLUND, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRF170239, CRF152259)
In case No. CRF152259 (the identity theft case), defendant Brian James Berglund pleaded no contest to one count of having the personal identifying information of 10 or more persons and one count of mail fraud, and admitted a prior prison term, in exchange for a stipulated four-year split sentence and dismissal of the remaining charges and allegations. The trial court sentenced him to serve a four-year split term, with two years served in county jail and two years on mandatory supervision.
In case No. CRF170239 (the stolen property case), defendant pleaded no contest to buying or receiving a stolen vehicle or equipment, and admitted he committed the offense while released on bail or on his own recognizance in the identity theft case, in exchange for a stipulated sentence of two years eight months and dismissal of the remaining charges. The trial court resentenced defendant in the identity theft case to the same term as previously imposed, and sentenced defendant to serve a consecutive term of eight months (one-third the middle term) for the stolen property offense and two years for the on-bail enhancement. Defendant's total aggregate sentence for both cases was six years eight months with two years in county jail and four years eight months on mandatory supervision.
Defendant appealed from both judgments. Appointed counsel filed an opening brief that sets forth the facts of the above cases and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief claiming his appointed counsel in the stolen property case had a conflict of interest that requires us to set aside his no contest pleas in both cases, and that the two-year sentence for the on-bail enhancement in the stolen property case violates double jeopardy and amounts to an improper dual use of facts. We sought and received responsive briefing on these issues. We conclude defendant's appeal from the judgment in the identity theft case is untimely and must be dismissed. His appeal from the judgment in the stolen property case must be dismissed because he did not secure a certificate of probable cause and his claims attack the validity of his plea.
BACKGROUND
We provide the following brief description of the facts and procedural history of the cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
The Identity Theft Case
In December 2014, defendant and a female passenger were observed going through mailboxes on Franklin Road in Sutter County. A police officer searched their vehicle and located several pieces of mail. Defendant told police he had opened approximately 20 mailboxes.
In October 2015, Sutter County Deputy District Attorney Jacquelyn Stenson filed a complaint in the identity theft case charging defendant with possession of the personal identifying information of 10 or more persons (Pen. Code, § 530.5, subd. (c)(3), count one), possession of the personal identifying information of another person (§ 530.5, subd. (c)(1), count two), four counts of mail theft (§ 530.5, subd. (e), counts three through six), two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), counts seven and nine), and possession of forged documents (§ 475, subd. (a), count eight). Defendant was released on bail.
Undesignated statutory references are to the Penal Code.
The preliminary hearing was set for December 11, 2015, with a prehearing conference on December 9. Defendant did not appear in court on that date and was charged in a separate case with violating section 1320.5 with an on-bail enhancement alleged pursuant to section 12022.1. That case was later consolidated with the identity theft case.
At the preliminary hearing on the initial charges (before consolidation), defendant was represented by the public defender's office. Deputy District Attorney Stenson represented the People. Judge Chandler held defendant to answer, and defendant later retained his own counsel, Mandeep Sidhu.
An August 2016 amended information charged defendant with the foregoing counts plus one count of committing a felony while released from custody on bail (§ 1320.5, count ten). The information further alleged two prior prison terms (§ 667.5, subd. (b)) and an on-bail enhancement (§ 12022.1).
In December 2016, defendant pleaded no contest to counts one and three and admitted one prior prison term allegation, for a stipulated four-year split sentence. During the plea negotiations, defendant was represented by Sidhu, his retained counsel. The People were represented by several deputy district attorneys, none of whom was Stenson.
On April 10, 2017, the trial court sentenced defendant to serve the stipulated four-year term (upper term of three years for the identity theft offense and one year for the prison prior; concurrent one-year jail term for the misdemeanor mail theft offense), with two years in county jail and two years on mandatory supervision. The remaining counts and allegations were dismissed. Defendant began serving this sentence on this date.
The Stolen Property Case
In February 2017, while defendant was awaiting sentencing in the identity theft case, he was arrested and charged in the stolen property case with possessing marijuana for sale (Health & Saf. Code, § 11359, count one), receiving stolen property (§ 496d, subd. (a), count two), having a fraudulent vehicle identification number (Veh. Code, § 10752, subd. (a), count three), and wrong vehicle registration (Veh. Code, § 4462, subd. (b), count four). The complaint was later amended to include an on-bail enhancement under section 12022.1 since defendant had been released on bail in the identity theft case when he committed the offenses.
The public defender's office was appointed to represent defendant in the stolen property case. By that time, it appears Stenson, who previously worked for the district attorney's office and had filed the complaint and conducted defendant's preliminary hearing in the identity theft case, had transferred to the public defender's office. She appeared as a deputy public defender on defendant's behalf. Defendant did not object to Stenson's representation in the stolen property case.
Defendant pleaded no contest to receiving stolen property and admitted the on-bail enhancement for a stipulated two-year eight-month sentence. Stenson represented him during the plea negotiations.
On April 26, 2017, the trial court sentenced defendant in the stolen property case and resentenced him in the identity theft case, consolidating the sentences as required by sections 669 and 1170.1, subdivision (a). Stenson represented defendant on both matters during the hearing. The trial court resentenced defendant in the identity theft case to serve the same term as previously imposed, a four-year split sentence with two years in county jail and two years on mandatory supervision. The court sentenced defendant to serve a consecutive term of eight months (one-third the middle term) for the stolen property offense and two years for the on-bail enhancement in the stolen property case. Defendant's total aggregate sentence for both cases was six years eight months, with two years in county jail and four years eight months on mandatory supervision.
Defendant appealed in both cases. Judge Aronson granted defendant a certificate of probable cause in the identity theft case (case No. CRF152259), and Judge Green denied defendant's request for a certificate of probable cause in the stolen property case (case No. CRF170239).
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the cases and, pursuant to People v. Wende, supra, 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief that raised issues regarding the right to conflict free counsel in both cases, and double jeopardy and dual use of facts for an on-bail enhancement in the stolen property case. We sought and received responsive briefing on these issues. As we explain immediately below, we must dismiss defendant's appeal from the judgment in the identity theft case as untimely. His appeal from the judgment in the stolen property case must be dismissed because he did not secure a certificate of probable cause and his claims attack the validity of his plea.
I
The Identity Theft Case
Defendant contends his no contest plea in the identity theft case must be set aside because his appointed counsel in the stolen property case had a conflict of interest that prejudiced the plea negotiations in both cases. We have no jurisdiction to decide this issue.
With certain exceptions not applicable here, a notice of appeal must be filed "within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.308(a).) The trial court's imposition of sentence in a criminal case is the rendition of the "final judgment of conviction" in such a case. (§ 1237, subd. (a).) "In general, a timely notice of appeal is ' "essential to appellate jurisdiction." [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An untimely notice of appeal is "wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion." [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.' [Citation.]" (In re Chavez (2003) 30 Cal.4th 643, 650.)
Undesignated rule references are to the California Rules of Court. --------
Here, the court imposed judgment and sentence in the identity theft case on April 10, 2017. Defendant had 60 days, or until June 9, 2017, to appeal from the judgment in that case. Defendant, however, did not appeal from the judgment until June 19, 2017—10 days after the appeal deadline expired. Defendant's appeal in the identity theft case is therefore untimely unless the April 26 sentencing in the stolen property case, during which the trial court resentenced him in the identity theft case, consolidating the sentences as required by sections 669 and 1170.1, subdivision (a), either: (1) extended the deadline to appeal in the identity theft case; or (2) amounted to an "order after judgment, affecting the substantial rights" of defendant in that case. (§ 1237, subd. (b).)
Our research has revealed no authority supporting the proposition that once a judgment or appealable order has been entered that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision. Indeed, the law is to the contrary. (See Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583 [time to appeal from an appealable order not extended even though court later issued a judgment to the same effect as the order].) It is indisputable that on April 26, the trial court imposed the same sentence in the identity theft case that had previously been imposed on April 10 when judgment was pronounced in that case. This is because, under rule 4.452, the trial court in the stolen property case was not permitted to change any discretionary sentencing decisions made by the trial court in the identity theft case, with the exception of designating "a previously designated principal term . . . a subordinate term" during the resentencing, with the concomitant reduction in that term to "one-third the middle base term as provided in section 1170.1(a).)" (Rule 4.452(3).) Here, however, the trial court in the stolen property case retained the four-year split sentence imposed in the identity theft case as the principal term in the combined resentencing, thus changing nothing about that previously-imposed judgment. For this reason, we also conclude the resentencing did not amount to an order after judgment affecting defendant's substantial rights in the identity theft case. Nothing about the previous judgment in that case changed.
Because defendant's appeal of the judgment in the identity theft case is untimely, it must be dismissed.
II
The Stolen Property Case
Defendant contends his appointed counsel in the stolen property case had a conflict of interest that requires us to set aside his no contest plea and that the two-year sentence for the on-bail enhancement violates double jeopardy and amounts to an improper dual use of facts. Defendant was required to obtain a certificate of probable cause under section 1237.5 in order to raise these issues on appeal. Because he did not obtain the necessary certificate in the stolen property case, these claims are not cognizable on appeal.
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." (§ 1237.5; see also rule 8.304(b) [the defendant must obtain a certificate of probable cause unless the grounds for appeal arose after entry of the plea and do not affect the validity of the plea].) "Section 1237.5 has as its purpose 'to promote judicial economy' [citation] 'by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money are spent' on such matters as the preparation of the record on appeal [citation], and the appointment of appellate counsel [citation], and, of course, consideration and decision of the appeal itself." (People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez).)
It is well settled that "[a] certificate of probable cause is a condition precedent to any appeal within its scope, and the defendant must comply with all statutory requirements." (People v. Thurman (2007) 157 Cal.App.4th 36, 41.) Where an appeal raises certificate issues—questions going to the legality of the proceedings, and, specifically, the validity of a defendant's guilty plea, section 1237.5 requires a certificate of probable cause before an appellate court may determine the merits of the appeal. (Mendez, supra, 19 Cal.4th at p. 1100.) With that said, section 1237.5 contains an exception: "The defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he [or she] does so solely on noncertificate grounds, which go to postplea matters not challenging his plea's validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5." (Mendez, at p. 1096.) Thus, absent a certificate of probable cause, an appellate court may decide non-certificate issues but must decline to address certificate issues. (Id. at p. 1099.)
Here, defendant's claim his plea must be set aside because of the purported conflict of interest obviously challenges the validity of the plea. With respect to his claims regarding the on-bail enhancement, we note that "[w]hen the issue on appeal challenges the defendant's sentence following a guilty plea or plea of nolo contendere, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range." (People v. Vargas (2007) 148 Cal.App.4th 644, 651; People v. Williams (2007) 156 Cal.App.4th 898, 910-911.) " '[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause." (People v. Shelton (2006) 37 Cal.4th 759, 766.) The record in this case shows that as part of defendant's plea agreement he agreed to plead no contest to possessing a stolen vehicle and admit that he committed the crime while released on bail under section 12022.1 in exchange for a stipulated sentence. Under the terms of the plea bargain, defendant negotiated a term of two years eight months in prison that consisted of one-third the middle term of eight months for the possession of a stolen vehicle conviction and two years for the section 12022.1 on-bail enhancement. Thus, defendant's double jeopardy and dual use of facts challenges to the on-bail enhancement attack the validity of his stipulated sentence. This is a challenge to the validity of the plea itself.
Because defendant's claims challenge both the validity of his plea and the specific negotiated sentencing terms of his plea bargain rather than sentencing choices left to the discretion of the court, his claims raise "certificate" issues for which he was required to obtain a certificate of probable cause. (Mendez, supra, 19 Cal.4th at p. 1088; People v. Shelton, supra, 37 Cal.4th at p. 766; People v. Vargas, supra, 148 Cal.App.4th at p. 651; People v. Williams, supra, 156 Cal.App.4th at pp. 910-911.) It is undisputed that the trial court denied defendant a certificate of probable cause here. As a result of his failure to secure a certificate of probable cause in the stolen property case, defendant's appeal of the judgment in that case must be dismissed. (See People v. Shelton, supra, 37 Cal.4th at p. 771.)
DISPOSITION
Defendant's appeals from the judgments in case Nos. CRF152259 and CRF170239 are dismissed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
RENNER, J.