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People v. Bosse

Court of Appeal of California
Apr 22, 2009
No. F056423 (Cal. Ct. App. Apr. 22, 2009)

Opinion

F056423

4-22-2009

THE PEOPLE, Plaintiff and Respondent, v. PEGGY LEE BOSSE, Defendant and Appellant.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Not to be Published in the Official Reports


OPINION

THE COURT

Before Cornell, Acting P.J., Dawson, J., and Kane, J.

FACTS AND PROCEEDINGS

On September 10, 2007, appellant, Peggy Lee Bosse, was charged in an information with cultivation of marijuana (Health & Saf. Code, § 11358, count one), possession of marijuana for sale (§ 11359, count two), transportation of marijuana (§ 11360, subd. (a), count three), possession of methamphetamine for sale (§ 11378, count four), and transportation of methamphetamine (§ 11379, subd. (a), count five).

Unless otherwise noted, all statutory references are to the Health and Safety Code.

On July 7, 2008, appellant executed a felony advisement of rights, waiver, and plea form in which she acknowledged and waived her constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). Under the plea agreement, appellant would admit the allegations and would receive a sentence with a range of between 16 months and 4 years. The plea form executed by appellant expressly set forth the sentence range and was initialed by appellant. In exchange for appellants admission of the allegations, criminal charges against her daughter would be dismissed. Appellant further acknowledged that she discussed each initialed item with her attorney as well as understanding and agreeing with each initialed item in the plea form.

At the change of plea hearing, the prosecutor explained that appellant "is pleading to each of the counts that are set forth in the plea agreement for a minimum term of 16 months state prison, maximum term of four years state prison." Appellant would not receive probation or a commitment to the California Rehabilitation Center. Appellant and her trial counsel acknowledged this was the agreement. The trial court then stated that appellant was "pleading for a set term ... of 16 months." The prosecutor said yes to this statement. No other comment was made during the hearing concerning the length of appellants sentence.

The court explained the consequences of appellants plea to her. The court advised appellant of her Boykin/Tahl rights, which appellant waived. Appellant pled no contest to counts one through five. Appellant acknowledged that she was entering the pleas voluntarily after discussing the matter with her attorney. The parties stipulated that the preliminary hearing and probation report set forth a factual basis for appellants plea.

On August 12, 2007, an officer found 9,435 healthy marijuana plants 50 yards from appellants trailer home. There was a trail from the garden leading to appellants home. The plants would have produced between 4,500 and 9,000 pounds of marijuana. In appellants home, the officer found a digital scale with marijuana residue on it, boxes of Ziploc bags, a bag with 1.4 grams of marijuana, 18 marijuana cigarettes, a bag of marijuana seeds and stems, two notebooks that appeared to be pay and owe sheets, and marijuana stems in the fireplace. Later that day, officers stopped appellant in her truck. Appellant had seven packages of methamphetamine weighing 4.8 grams, a usable amount. Officers also found three large bags of marijuana behind the center console of the truck.

The probation report recommended a sentence of three years eight months. At the sentencing hearing on September 10, 2008, defense counsel argued that appellant should be given the low term of 16 months in prison. The court imposed the midterm of three years on count five, which it found to be the principal term. The court imposed a consecutive term of eight months on count one. The court imposed a concurrent term of three years on count three and stayed sentences on counts two and four pursuant to Penal Code section 654.

Appellants total prison term is three years eight months. Appellant was awarded custody credits of 594 days and the pending criminal charges against her daughter were dismissed. Appellant filed a timely appeal. Appellants application for a certificate of probable cause was not granted.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised she could file her own brief with this court. By letter dated January 20, 2009, we invited appellant to submit additional briefing.

Appellant replied in a letter dated January 28, 2009, arguing that the "clerks transcript" shows that the trial court stated she was to receive a sentence for a set term of 16 months and that the prosecutor replied affirmatively to the trial courts comment. First, we note that the trial court appeared to have misspoken when it referred to a set term of 16 months. Moments earlier, the prosecutor stated that appellant would receive a term in a range from 16 months up to four years. Appellant and her counsel affirmatively asserted on the record that this was their understanding of the plea agreement. Appellant executed a plea form in which she initialed a box next to the statement that her prison term would be in a range between 16 months and four years.

Appellant never filed a motion to withdraw her plea based on a potential misunderstanding of the length of her sentence. The probation report recommended a sentence of three years eight months and appellants counsel did not argue at the sentencing hearing that appellant was entitled to a set term of 16 months. Instead, counsel argued that appellant should receive the low term of 16 months rather than the upper range term permitted by the plea agreement.

Second, appellant failed to obtain a certificate of probable cause. In asserting that the court imposed the wrong sentence under the terms of the plea agreement, appellant is essentially challenging the validity of the plea agreement itself. She cannot do so, however, without a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 768-770.)

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. Therefore, it was incumbent upon appellant to seek and obtain a probable cause certificate in order to attack the sentence on appeal. (People v. Panizzon (1996) 13 Cal.4th 68, 77-79.)

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Bosse

Court of Appeal of California
Apr 22, 2009
No. F056423 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Bosse

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PEGGY LEE BOSSE, Defendant and…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. F056423 (Cal. Ct. App. Apr. 22, 2009)