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People v. Blount

California Court of Appeals, Fourth District, First Division
Jul 8, 2008
No. D052184 (Cal. Ct. App. Jul. 8, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD H. BLOUNT, Defendant and Appellant. D052184 California Court of Appeal, Fourth District, First Division July 8, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD208909, Stephanie Sontag, Judge.

IRION, J.

Richard H. Blount entered a negotiated guilty plea to one count of grand theft (Pen. Code, § 487, subd. (c).) In return, the district attorney agreed to dismiss outstanding counts of robbery (§ 211) and burglary (§ 459), as well as a number of sentence enhancement allegations. The parties also agreed that the plea would result in a stipulated sentence of three years in prison, and that the prison term would run concurrently with time Blount was to serve on a parole violation. At sentencing, the trial court imposed the three-year stipulated sentence. The record does not contain a certificate of probable cause. (See § 1237.5.)

All statutory references are to the Penal Code unless otherwise indicated.

FACTS

The facts of the offense are drawn from the sentencing report.

On September 4, 2007, Blount entered a 7-Eleven in San Diego, took purses belonging to two 7-Eleven employees and struggled with the employees for over 30 seconds. After the struggle, the employees were able to get their purses back and Blount, who escaped from the store but dropped his parole identification card as he fled, was later arrested by police. Upon arrest, Blount admitted to police that he took the purses "because they got money" and admitted that since he had entered the 7-Eleven "to take something[, y]ou got me for burglary." (The police report indicates that surveillance footage shows Blount taking the purses and his struggle with the victims.)

Shortly after his arraignment, Blount agreed to plead guilty. On a plea form submitted to the court, Blount initialed the rights he was waiving by virtue of the guilty plea, stipulated to a three-year sentence (concurrent with his parole violation), and admitted that he "took and carried away personal property of another by using force from the person of another." Blount also engaged in an oral plea colloquy with the court at which he again acknowledged the constitutional rights he was giving up by virtue of the plea and that he "will serve three years in state prison." Blount also acknowledged, after initial equivocation, that he "push[ed] somebody when [he was] stealing their property." Prior to sentencing, Blount submitted a handwritten letter to the trial court apologizing for his crime and seeking to be placed in a drug and alcohol treatment program instead of state prison.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible, but not arguable, issue: whether the trial court violated Blount's constitutional rights or abused its discretion in sentencing him to an upper term. (Three years is the upper term sentence for grand theft.) (See §§ 489, subd. (b), 18.)

We granted Blount permission to file a brief on his own behalf. Blount filed a supplemental brief contending that his sentence to an upper term was error and cites the Supreme Court's ruling in Cunnigham v. California. (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. This contention is without merit. Blount's plea agreement includes a stipulation to a three-year sentence, and he cannot challenge that sentence on appeal (as unconstitutional or an abuse of discretion) absent a certificate of probable cause, which he has not obtained. (See People v. Shelton (2006) 37 Cal.4th 759, 771; § 1237.5 [prohibiting appeal from guilty plea absent certificate of probable cause].) In addition, Blount's plea agreement includes his agreement to "give up my right to appeal . . . any sentence stipulated herein," and thus his challenge to that sentence is also barred by his negotiated plea agreement. (See People v. Panizzon (1996) 13 Cal.4th 68, 79.) Finally, Blount executed a so-called Blakely waiver as part of his plea agreement that further bars his constitutional contention. (See In re Ibarra (1983) 34 Cal.3d 277, 286 [waiver of constitutional rights can be obtained by "waiver form under normal circumstances"].)

Blount also appended a newspaper article to his brief that discusses alternative sentencing frameworks available to military veterans.

Blakely v. Washington (2004) 542 U.S. 296.

In addition to evaluating Blount's contention, we have conducted a review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel. Our review has disclosed no reasonably arguable appellate issues. Competent counsel has represented Blount on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P.J., ARON, J.


Summaries of

People v. Blount

California Court of Appeals, Fourth District, First Division
Jul 8, 2008
No. D052184 (Cal. Ct. App. Jul. 8, 2008)
Case details for

People v. Blount

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD H. BLOUNT, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 8, 2008

Citations

No. D052184 (Cal. Ct. App. Jul. 8, 2008)