Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA041378 Jessica Perrin Silvers, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Christopher Craig (Craig) appeals from the judgment entered following his plea of no contest to second degree robbery (Pen. Code, § 211) and assault with a firearm (§ 245, subd. (a)(2)). The trial court sentenced Craig to two years in prison, the term to run consecutively to a 17-year sentence imposed in case No. FV1015687. We dismiss Craig’s appeal as inoperative for failure to obtain a certificate of probable cause.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the probation report.
At approximately 9:30 a.m. on August 17, 2002, Craig and three accomplices entered Collateral Loans, a pawn shop on Sherman Way in Reseda. The owner of the shop, Sam Rosenfeld (Rosenfeld), and two employees, Regina and Russell Merkerson, were in the shop at the time.
One of the four men asked Russell Merkerson about some stereo equipment while another asked Rosenfeld about a ring. The other two men, one of whom was armed with a handgun, then jumped over the counter and ordered Rosenfeld and the Merkersons to get down on the ground. Rosenfeld was able to sound the alarm and, after one of the men took Rosenfeld’s wallet, the four men fled from the shop. Inside his wallet, Rosenfeld had $550 in United States currency, several credit cards and his driver’s license. The wallet was worth five dollars.
2. Procedural History.
In a felony complaint filed September 12, 2002, Craig and three accomplices were charged in count one with the crime of second degree robbery of Rosenfeld (§ 211), during which a principal was armed with a firearm (§ 12022, subd. (a)(1)). It was further alleged as to Craig that he personally used a firearm during the offense (§ 12022.53, subd. (b)). Count two of the complaint charged Craig and his three accomplices with assault with a firearm of Regina Merkerson (§ 245, subd. (a)(2)), during the commission of which each of the men personally used a firearm (§ 12022.5, subds. (a) & (d)). In count three it was alleged that Craig and each of his accomplices committed assault with a firearm of Russell Merkerson (§ 245, subd. (a)(2)) and that each man personally used a firearm during the offense (§ 12022.5, subds. (a) & (d)).
At proceedings held on September 13, 2006, Craig waived arraignment, the reading of the complaint, and a statement of his constitutional and statutory rights and pleaded not guilty to each of the three alleged crimes.
After waiving his right to a preliminary hearing and pursuant to a negotiated agreement, on February 15, 2007, Craig chose to plead no contest to the robbery of Rosenfeld as alleged in count one and the assault with a firearm of Regina Merkerson as alleged in count two. In exchange for his pleas, the People were to dismiss all remaining counts and allegations and Craig was to be sentenced to one-third the mid-term, or one year, as to each count. The terms were to run consecutively to each other and to a 17-year sentence previously imposed in another matter.
Craig waived his right to a jury or court trial, his right to subpoena witnesses and present a defense, his right to confront and cross-examine the witnesses against him and his privilege against self-incrimination and pleaded no contest to one count of second degree robbery and one count of assault with a firearm. The trial court then sentenced Craig to a term of one year in prison for his conviction of robbery, the term to run consecutively to the term imposed in case No. FV1015687. For his conviction of assault with a firearm, the trial court imposed a term of one year in prison, the term to run consecutively to the term imposed for the robbery and the term imposed in case No. FV1015687. Craig was thus sentenced to an aggregate term of 19 years in prison.
The trial court ordered Craig to pay to Rosenfeld $555 in restitution pursuant to section 1202.4, subdivision (f). In addition, the trial court imposed a restitution fine in the amount of $200 (§ 1202.4, subd. (b), ordered, then suspended, a parole revocation restitution fine in the amount of $200 (§ 1202.45), and directed Craig to pay a court security fee in the amount of $20 (§ 1465.8, subd. (a)(1)). Craig was awarded no presentence custody credits. On the People’s motion, the remaining counts and allegations were dismissed in furtherance of justice (§ 1385).
Craig filed a timely notice of appeal on April 16, 2007.
This court appointed counsel to represent Craig on appeal on June 26, 2007.
CONTENTIONS
After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed October 10, 2007, the clerk of this court advised Craig to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On November 30, 2007, Craig filed a response indicating, although he had advised his counsel he wished the two-year sentence in the present case to be run concurrently to the 17-year term in case No. FV1015687, since his counsel informed him the prosecutor would not agree to such a disposition, he “had no choice but to [accept] the 2 years consecutive.” Craig asks this court to “modify” the sentence so that the two-year term imposed in the present matter runs concurrently to the 17-year sentence in case No. FV1015687. Craig emphasizes that he is “not rejecting [his] plea.” He simply wishes the sentences in the two matters to be concurrent.
DISCUSSION
When a defendant enters a plea of guilty or no contest, he may not bring an appeal challenging the validity of the plea unless he “has sought, and the trial court has issued, a certificate of probable cause ‘showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.’ ” (People v. Emery (2006) 140 Cal.App.4th 560, 562; see § 1237.5.) Further, a certificate “must be obtained regardless of other procedural challenges being made.” (In re Chavez (2003) 30 Cal.4th 643, 651.)
Craig’s contention that he had no choice but to accept that the two, one year sentences would be run consecutively to each other and to the 17-year term goes to the validity of the plea itself and, as such, is not cognizable on appeal absent a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766 [“ ‘[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’ and thus requires a certificate of probable cause”].) Moreover, even if we were to consider Craig’s contention, it would be without merit. By accepting the negotiated sentence in exchange for dismissal of numerous alleged charges, Craig waived any claim imposition of the consecutive sentences was somehow improper. (Id. at p. 767; People v. Buttram (2003) 30 Cal.4th 773, 783.)
APPELLATE REVIEW
We have examined the entire record and are satisfied Craig’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Craig pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed as inoperative. (In re Chavez, supra, 30 Cal.4th at pp. 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1094-1099; § 1237.5.)
DISPOSITION
The appeal is dismissed.
We concur: KITCHING, J., ALDRICH, J.