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People v. Campos

California Court of Appeals, Fourth District, Third Division
Jul 29, 2008
No. G039604 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 06CF2976, Kazuharu Makino, Judge.

Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

IKOLA, J.

Defendant Freddie Campos was charged by amended felony complaint with four counts of second degree robbery (Pen. Code, § 211), one count of receiving stolen property (§ 496, subd. (a)), and one count of street terrorism (§ 186.22, subd. (a)). The People also alleged the four robbery counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). After multiple continuances of the preliminary hearing, defendant entered into a plea bargain by which he pleaded guilty to the first two counts of second degree robbery, the receiving stolen property count, and admitted the gang allegations attached to the two robbery counts. The People agreed to dismiss two of the robbery counts, the street terrorism count, and the gang allegations attached to the two dismissed robbery counts, and to propose a six year state prison sentence.

All subsequent statutory references are to the Penal Code.

Before defendant was sentenced, he moved to withdraw his plea, but his motion was denied. The court sentenced defendant in accordance with the plea agreement. On the first robbery count, defendant was sentenced to the upper term of five years in state prison, a consecutive one-year term on the second robbery count (one-third the middle term), and a concurrent middle term of two years on the receiving count. The gang enhancements related to the robbery counts were stricken for purposes of sentencing. The remaining counts and enhancements were dismissed as agreed. Thus, defendant’s total state prison term is six years.

Factual Basis for Plea

The defendant’s Tahl form is the only source from which the facts of this case may be drawn. As the factual basis for his guilty plea, defendant stated: “In Orange County, California, on 9/5/06 and 9/18/06 I willfully + unlawfully and by means of force and fear took the personal property against the will of S. Trujillo on 9/18/06 and from G. Martinez on 9/5/06. I committed these two robberies for the benefit of and in association with Santa Nita, a criminal street gang, with the specific intent to promote criminal conduct by members of that gang. On 9/19/06 in Orange County I possessed property I knew had been stolen.”

In re Tahl (1969) 1 Cal.3d 122.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from defendant.

Pursuant to Anders v. California (1967) 386 U.S. 738, counsel suggested we consider several issues in conducting our independent review of the record. As we now explain, counsel correctly concluded the potential issues are not arguable.

Defendant’s Waiver of His Right to Appeal Was Valid

As part of his plea agreement, defendant waived his right to appeal by initialing the paragraph on the plea form which stated: “I understand I have the right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including motions to suppress evidence brought pursuant to Penal Code section 1538.5. I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.” When the plea was taken, defendant told the court he had placed his initials on all four pages of the plea form and had signed the fourth page. He acknowledged that he did in fact “read and understand everything on [his] form before [he] signed and initialed it.” When asked whether he had any questions about anything on the form or his guilty plea, defendant answered “no.” Defendant also acknowledged that no one had “made any threats, used any force against [him], family or loved ones, or made any promises . . . other than set forth in the guilty plea form in order to convince [him] to plead guilty.”

“[A] defendant may validly waive his right to appeal as part of a plea bargain. A waiver of appeal is proper, ‘provided such waiver is knowing, free and intelligent.’” (People v. Kelly (1994) 22 Cal.App.4th 533, 535.) Here, “[t]he record demonstrates defendant’s waiver of the right to appeal was made with full knowledge and understanding of the consequences.” (Id. at p. 536.) “In exchange, defendant received, and well understood he was receiving, significant benefits, including the dismissal of [two counts of robbery and one count of street terrorism] and a sentence limit.” (Ibid.)

Accordingly, defendant’s appeal is not cognizable. It must be dismissed.

Other Issues Suggested by Counsel Are Not Cognizable

Counsel suggested we consider whether defendant’s guilty plea was constitutionally valid. But defendant may not challenge the validity of his plea unless he first obtains a certificate of probable cause to appeal. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Defendant applied for the certificate, but it was denied. Thus, we may not consider the validity of his plea.

Counsel also suggests we consider whether the court erred by denying defendant’s motion to withdraw his plea. It is well established, however, that “[i]f a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea.” (People v. Ribero (1971) 4 Cal.3d 55, 63-64.) Thus, in the absence of a certificate of probable cause, we may not review the denial of his motion to withdraw the plea.

Counsel asks that we consider whether defendant’s counsel provided effective assistance to defendant. We have reviewed the entire record. Nothing appearing therein suggests, much less proves, that counsel’s performance was deficient “under an objective standard of professional reasonableness.” (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1.)

Counsel suggests we consider whether there was a factual basis for the plea. Manifestly there was. All elements of the subject crimes were established by the facts admitted. Moreover, this suggested issue challenges the validity of the plea, which we may not review in the absence of a certificate of probable cause. (§ 1237.5; People v. Pinon (1979) 96 Cal.App.3d 904, 907-909.)

Finally, counsel suggests we consider whether the court abused its discretion when it denied defendant’s request for a certificate of probable cause. But the order denying a certificate is not an appealable order. (See § 1237; People v. Kraus (1975) 47 Cal.App.3d 568, 577-578.) The order may only be challenged by writ of mandate. (In re Brown (1973) 9 Cal.3d 679, 683, superseded by statute on another point.)

We have examined the entire record and have not found an arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The appeal is dismissed.

WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.


Summaries of

People v. Campos

California Court of Appeals, Fourth District, Third Division
Jul 29, 2008
No. G039604 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Campos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FREDDIE CAMPOS, Defendant and…

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

Date published: Jul 29, 2008

Citations

No. G039604 (Cal. Ct. App. Jul. 29, 2008)