Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Super. Ct. No. 07CF1788
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
ARONSON, J.
We appointed counsel to represent defendant Guy Easley on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised the court he found no issues to argue on his behalf. We provided defendant 30 days to file written argument in his own behalf after receiving notification of his change of address. That period has passed, and we have received no communication from him.
We have examined the record pursuant to People v. Wende (1979) 25 Cal.3d 436. An amended felony complaint filed May 24, 2007, charged Easley with two counts of failing to register as a sex offender (former Pen. Code, § 290, subd. (g)(2), added by Stats. 2007, ch. 579, § 20, eff. Oct. 13, 2007). It also alleged he had suffered four serious/violent felonies within the meaning of the Three Strikes law (§ 667, subds. (d) & (e)(2), § 1170.12, subds. (b) & (c)(2)(A)), including rapes (former §§ 261.2, amended by Stats. 1990, ch. 630, § 1, eff. Jan. 1, 1991; 261.3, amended by Stats. 1990, ch. 630, § 1, eff. Jan. 1, 1991) in 1976 and 1989, and residential burglaries (§§ 459, 460) in 1975 and 1983, and served five separate prison terms within the meaning of section 667.5, subdivision (b).
All statutory citations are to the Penal Code.
At the preliminary hearing, the police officer responsible for managing sex-offender registrants in the City of Orange testified Easley registered in the city on May 17, 2006. Records from the Department of Motor Vehicles and the Violent Crime Information Network reflected defendant lived in Placentia as of September 13, 2006, and did not register his move or update his registration within five days after his July birthday. (See former § 290, subds. (a)(1)(A), (D) & (f)(1)(A), added by Stats. 2007, ch. 579, § 21, eff. Oct. 13, 2007; see also §§ 290, subd. (b), 290.012, 290.013.) On July 9, 2007, the Orange County District Attorney filed an information charging Easley with two violations of former section 290, subdivision (g)(2).
Easley pleaded guilty to both counts and admitted the truth of the prior conviction allegations on November 2, 2007. In open court, defendant acknowledged he had carefully considered the guilty plea forms, understood the information conveyed on them, and that he had ample time to discuss the forms with his attorney. Easley stated he understood the constitutional rights he was waiving. Defendant also stated he was pleading guilty freely and voluntarily and denied any threats or inducements beyond those mentioned on the forms. The form provided the court would sentence defendant to prison for six years. Defendant offered the following factual basis for his guilty plea: “In Orange County, California, on September 13, 2006 [and] between July 28, 2006 [and] May 24, 2007, I failed to register despite being required to do so based on a conviction of rape by force.”
Defendant also initialed next to the provision waiving the right “to appeal from any and all decisions and orders made in my case . . . . 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.”
The court sentenced defendant to six years in prison on January 25, 2008. The court imposed the three-year aggravated term for failure to register alleged in count 1, and doubled the term because of the prior conviction under the Three Strikes law. It imposed a concurrent six-year term for count 2. The court struck (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) all but the 1989 Three Strikes law convictions because of the age of the convictions, and based on a psychiatric opinion Easley may not have understood the need to register upon discharge from parole due to mental issues. The court stated, “[i]f the prior conviction[s were] not stricken, the mandated punishment under the Three Strikes law would result in an unjust sentence” and “defendant should therefore be treated as though he falls outside the Three Strikes sentencing scheme” under People v. Williams (1998) 17 Cal.4th 148. The court also struck the section 667.5, subdivision (b) priors. The court ordered defendant to pay a $200 restitution fine, imposed and suspended an identical parole revocation fine, ordered payment of a $20 security fee, ordered DNA testing and registration under Megan’s Law.
On March 21, 2008, defendant appealed “based on the sentence or other matters occurring after the plea.” He sought a certificate of probable cause asserting he had the right to withdraw his guilty plea and proceed to a jury trial because less than 60 days had elapsed from the date of his plea. He wrote, “I have had time to reflect and I believe that my plea of ‘guilty’ under the circumstances and matter I face in the court of law, will be in the best interest to recall the case . . . .” In the background information section of the appeal form, defendant listed as possible issues on appeal, “My rape crime in 1986 was a 261.5 and is [sic] not require[d] to register under the 290 [registration] law. My registering under that law was a condition of my parole and when discharged, I was never removed from the registration file.” On March 24, 2008, the trial court denied a certificate of probable cause and declined to recall the sentence.
Counsel identifies only one potential issue for our review: whether defendant may withdraw his plea after sentencing.
Section 1018 authorizes a defendant to apply to withdraw a guilty plea for good cause “at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended . . . .” (Italics added.) A trial judge renders judgment by imposing a prison sentence. Consequently, defendant’s application to withdraw his guilty plea after sentencing was untimely. (People v. Wade (1959) 53 Cal.2d 322, 339, disapproved on another ground in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.)
We also note defendant may not challenge the validity of his plea, including his waiver of appellate rights, because he did not obtain a certificate of probable cause. (§ 1237.5; People v. Cuevas (July 10, 2008, S147510) ___ Cal.4th ___, ___; People v. Panizzon (1996) 13 Cal.4th 68, 83-84.) The only exceptions to the rule concern a challenge to the denial of a defendant’s motion to suppress evidence under section 1538.5 and issues that arise after entry of the guilty plea that do not affect the plea’s validity. (People v. Shelton (2006) 37 Cal.4th 759, 766.) Neither of these exceptions applies here. Moreover, nothing in the appellate record suggests defendant’s plea or waiver was coerced or otherwise invalid. The record demonstrates the trial court advised defendant in writing and on the record in open court that he would receive a six-year sentence. The sentence was legally authorized and within the terms of his plea agreement.
Finally, defendant’s assertion on his appeal form that he was not required to register based on the nature of his prior conviction is contradicted by the record and his admissions. His guilty plea constituted an admission of every element of the offenses charged. (4 Witkin, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 259, p. 467.)
We discern no arguable issues. Defendant expressly waived his right to appeal, which precludes further consideration of the matter. The appeal is dismissed.
WE CONCUR: SILLS, P. J., IKOLA, J.