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People v. Childress

California Court of Appeals, Second District, Seventh Division
Feb 16, 2011
No. B224761 (Cal. Ct. App. Feb. 16, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA105868 Patrick Connolly, Judge.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


PERLUSS, P. J.

Bobby R. Childress was arrested and charged with one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) after police saw him toss a firearm into a yard. The information specially alleged Childress had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and had served a separate prison term for a felony (§ 667.5, subd. (b)). He entered a plea of not guilty and denied the special allegations.

Statutory references are to the Penal Code unless otherwise indicated.

The trial court granted Childress’s motion for discovery of police personnel records (Evid. Code, §§ 1043, 1045; Pitchess v. Superior Court (1974) 11 Cal.3d 531), reviewed the records in an in camera hearing and found no discoverable information. The court heard and denied Childress’s motion to dismiss the charge against him based upon the prosecutor’s failure to preserve and disclose exculpatory evidence. (California v. Trombetta (1984) 467 U.S. 479, 488 [104 S.Ct. 2528, 81 L.Ed.2d 413] (Trombetta).)

After the jury was impaneled, Childress, who was represented by retained counsel, waived his right to trial and entered a plea of no contest to possession of a firearm by a felon and admitted the prior conviction allegations. At the time Childress entered his plea, he was advised of his constitutional rights and the nature and consequences of his plea. Childress stated he understood and waived his constitutional rights, acknowledged he understood the consequences of his plea and admissions and accepted the terms of the negotiated agreement.

The trial court found the plea was freely and voluntarily entered, and there was a factual basis for the plea. Defense counsel joined in the waivers of Childress’s constitutional rights and stipulated to a factual basis for the plea. In accordance with the plea agreement, Childress was sentenced to an aggregate state prison term of five years, consisting of four years for possession of a firearm by a felon (double the two-year middle term under the Three Strikes law), plus one year for the prior prison term enhancement.

In addition to awarding Childress presentence custody credit, the trial court ordered him to pay a $30 security assessment, a $30 criminal conviction assessment and a $1,000 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45.

Childress filed a timely notice of appeal and a request for a certificate of probable cause. In his request for a certificate of probable cause, Childress checked the preprinted boxes indicating he was challenging “the sentence or other matters occurring after the plea” as well as “the validity of the plea or admission.” The request for a certificate of probable cause was denied. We appointed counsel to represent Childress on appeal.

After examination of the record counsel filed an opening brief in which no issues were raised. On October 7, 2010 we advised Childress he had 30 days within which to personally submit any contentions or issues he wished us to consider. On November 10, 2010 Childress filed a typed supplemental brief in which he challenged the denial of his Trombetta motion and claimed ineffective assistance of counsel.

We have examined the entire record and are satisfied Childress’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)

A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause can only challenge the denial of a motion to suppress evidence or raise grounds arising after the entry of the plea that do not affect the plea’s validity. (Cal. Rules of Court, rule 8.304(b).) Because Childress is, in essence, attacking the validity of his plea without a certificate of probable cause, his notice of appeal is inoperative. The appeal must be dismissed. (§ 1237.5; see People v. Shelton (2006) 37 Cal.4th 759, 769-771; People v. Panizzon (1996) 13 Cal.4th 68, 79.)

Moreover, the record provides no support for Childress’s assertion defense counsel provided ineffective assistance at any time during the proceedings. (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].) To the extent Childress’s claim is based on matters outside the record, it is more appropriately decided in a habeas corpus proceeding where all relevant facts can be developed. (People v. Avena (1996) 13 Cal.4th 394, 419.)

The appeal is dismissed.

We concur: WOODS, J., JACKSON, J.


Summaries of

People v. Childress

California Court of Appeals, Second District, Seventh Division
Feb 16, 2011
No. B224761 (Cal. Ct. App. Feb. 16, 2011)
Case details for

People v. Childress

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BOBBY R. CHILDRESS, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Feb 16, 2011

Citations

No. B224761 (Cal. Ct. App. Feb. 16, 2011)