Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE295880, Charles W. Ervin, Judge.
HALLER, J.
Defendant Brian Cooper (aka Payne) pled guilty to receiving stolen property in violation of Penal Code section 496, subdivision (a), admitted a prior strike in violation of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, and agreed to a stipulated sentence of four years, to be served consecutively to a 16-month sentence in a separate case that was also before the court. In return, four felonies, one misdemeanor, and two prison prior allegations were dismissed. The court imposed the stipulated sentence of four years, consisting of the mid-term of two years doubled because of the prior strike. The court also imposed various mandatory statutory assessments and a restitution fine in the amount of $800 pursuant to Penal Code section 1202.4, subdivision (b).
Defendant was charged in the Complaint and Amended Complaint as Bryan Robert Cooper, aka Brian Robert Payne; he signed the change of plea form as Bryan Payne; he filed his request for a certificate of probable cause as Brian Cooper; the abstract of judgment refers to him as Bryan Robert Cooper aka Robert Bryan Cooper; and the opening brief was filed referencing Brian Robert Payne. In this opinion we refer to him as defendant or Cooper.
FACTS AND PROCEDURAL BACKGROUND
Because there was no preliminary hearing, the facts are taken from the probation report.
Defendant began renting a room from his 82-year-old grandmother in January 2009. In May, she noticed he started using drugs again and began stealing cash from her purse and using two of her credit cards without her permission. When she confronted him, he apologized and promised to pay her back, but did not. In July, defendant's grandmother lent him a credit card to use while he was at a new job site. Upon his return, he continued using her credit card without her permission. She estimated that between May and early November 2009, Cooper made unauthorized purchases totaling more than $2,000.
Exasperated, the grandmother searched defendant's room looking for her stolen credit cards. After finding a fake driver's license and other fraudulent items, she called the sheriff's department. During their investigation, the deputies found a stolen driver's license and a stolen license plate on a Ford truck defendant drove. Defendant declined to make a statement to the authorities but told his grandmother, "I'm going to get you for this."
Based on this conduct, defendant was charged with theft from an elder, use of personal identifying information of another, receiving stolen property, forgery of a driver's license, and attempting to dissuade a witness from reporting a crime. He was also charged with misdemeanor domestic violence arising from an incident in which he confronted a former girlfriend and pulled her hair.
On January 8, 2010, defendant pled guilty to theft from an elder in violation of Penal Code Section 368, subdivision (d), admitted the prior strike (a 2001 first degree burglary conviction), and agreed to a stipulated sentence of four years in prison. On March 8, defendant withdrew his plea after the parties determined that the applicable statute had been amended.
That same day, defendant entered a new plea to receiving stolen property, admitted the prior strike and agreed to the stipulated sentence of four years in prison. The remaining charges and enhancements were dismissed. When defendant entered this plea, he admitted that he "unlawfully concealed the stolen property of another being a license plate." The court imposed the sentence outlined above. At sentencing, his grandmother did not request victim restitution.
The sentence was to be served consecutively to another matter pending in the San Diego superior court.
Defendant requested, and the court issued, a certificate of probable cause.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below. 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 four possible but not arguable issues: (1) whether defendant was properly advised of his constitutional rights and consequences of pleading guilty and whether he voluntarily waived his rights; (2) whether the plea agreement called for the court to impose an unauthorized sentence; (3) whether the sentence imposed conformed to the terms of the plea agreements; and (4) whether the imposition of a restitution fine and statutory assessments violated the plea agreement.
We granted defendant permission to file a brief on his own behalf. He has responded and raised five issues. We have reviewed these alleged errors and find they have no merit.
First, Cooper asserts that his attorney was incompetent for failing to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 requesting that his prior strike conviction be stricken. He maintains that his attorney informed him that the court denied such a motion, but notes that there is no written motion in the file evidencing that such a motion was made. Cooper requests that this matter be remanded for the court to consider a Romero motion.
Even assuming that Cooper's counsel did not bring a formal written motion, Cooper fails to show that had the motion been made, the court would have granted it. Thus, he has not shown prejudice and on that basis, his incompetency of counsel claim fails. (Strickland v. Washington (1984) 466 U.S. 668, 688; In re Hardy (2007) 41 Cal.4th 977, 1018.) Also, because Cooper agreed to a stipulated four-year sentence as part of a plea bargain that dismissed two prison priors, four felonies and one misdemeanor, he cannot now complain that he may be entitled to a more favorable sentence or that the sentence was unauthorized. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Second, Cooper argues that count 3 (receiving stolen property) "fails to meet certain elements to obtain a felony conviction for" Penal Code section 496, subdivision (a) because the value of the property at issue here - a license plate - was under $950. Although Cooper correctly notes that the district attorney has the authority to file a receiving stolen property charge as a misdemeanor if the value of the property does not exceed $950, Cooper fails to recognize that this authority is discretionary and that the district attorney maintains its authority to charge the count as a felony, even where the value of the property is below this threshold. Cooper has failed to show that the district attorney misused its authority in charging this count as a felony or that the interests of justice required it do otherwise. The fact the property may have had a minimal value is not determinative. For the same reason, Cooper's claim that his attorney was incompetent in failing to help him achieve a misdemeanor resolution of his case fails.
Third, Cooper notes that in 2010, Penal Code section 496, subdivision (a) was amended to change the valuation referenced from $400 to $950 and argues that he is entitled to the benefit of this change in the law. Cooper's argument fails for the same reason noted above. Even using the $950 valuation amount, the district attorney may, but is not required to, file the charge as a misdemeanor.
Fourth, Cooper complains that his counsel did not file a certificate of probable cause on his behalf as he had requested and thus was incompetent. Because the court issued a certificate of probable cause based on a request Cooper himself made, his counsel's inaction, if any, did not prejudice him in his appeal and thus he cannot establish a claim of incompetency of counsel on this ground.
Fifth, Cooper asserts that factually he is not guilty of receiving stolen property. In support of this position he relies on facts he set forth in support of his request for a certificate of probable cause and copies of photos, arguments and additional factual assertions submitted with his supplemental brief. His argument has no merit. At the time of his change of plea, Cooper admitted that he "unlawfully concealed the stolen property of another being a license plate." Because Cooper pled guilty to receiving stolen property, he may not challenge the determination of guilt or innocence on appeal as a "guilty plea admits every element of the charged offense and constitutes a conviction." (In re Chavez (2003) 30 Cal.4th 643, 649.)
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 issues referred to by appellate counsel and the issues Cooper has presented, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Cooper on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P.J., McDONALD, J.