Opinion
C084771
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. GRANVAL GAIL HARRISON-HUNTER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE010535)
Appointed counsel for defendant Granval Gail Harrison-Hunter, Jr., has asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief, raising various issues about his plea, and we requested and received supplemental briefing on the application of Senate Bill No. 620, if any, to defendant's case.
Because the lack of a certificate of probable cause (CPC) precludes our review of defendant's stipulated sentence as well as his other claims, and finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
BACKGROUND
After a dispute over ownership of a motorbike, defendant fired at least eight shots at a truck containing the motorbike and driven by the victims. The police found eight shell casings in the area where defendant was seen standing. The police also found a bullet hole near the tailgate on the truck. A neighbor's surveillance camera recorded defendant firing the gun. The People charged defendant with two counts of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The amended information included two allegations that defendant had used a semi-automatic firearm (§ 12022.5, subds. (a), (d)) and further alleged that defendant was previously convicted of a strike offense (§ 667, subds. (b)-(i)) and served a term in prison (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
Pursuant to a negotiated plea agreement, defendant pleaded no contest to both assault charges, counts one and two of the amended information. He also admitted the two section 12022.5 allegations and the strike. In exchange for his plea, the People moved to dismiss the remaining charges and allegations and the parties stipulated to a term of 27 years four months in state prison, which included the upper term of 10 years in prison for the section 12022.5 allegation on count one, and a consecutive sentence of one-third the midterm for that same allegation on count two.
When announcing the stipulation at the beginning of the plea, the prosecutor apparently misspoke (or mathematically miscalculated) and announced the stipulated term as 27 years eight months, which was four months greater than the aggregate sentence of 27 years four months actually represented by the agreed-upon calculations.
At sentencing, the court imposed the stipulated sentence, calculated as the parties had agreed, awarded defendant 324 days of custody credit, and ordered him to pay various fines and fees. Defendant appealed; the trial court denied his request for a CPC.
DISCUSSION
Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant filed a timely supplemental brief challenging the validity of his plea for various reasons and arguing that he received ineffective assistance of counsel. He also asked for remand to the trial court for consideration of the recent amendments (under Senate Bill No. 620) to section 12022.5. We directed both parties to provide supplemental briefing on that issue through counsel.
On October 11, 2017, the Governor signed into law Senate Bill No. 620 (2017- 2018 Reg. Sess.), which amended section 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, § 2).
The People argue defendant is not entitled to the benefit of the recent amendments because he failed to obtain a CPC. On this record, we agree. We also find that defendant's failure to obtain a CPC precludes review of his additional challenges to the validity of his plea.
To the extent defendant argues ineffective assistance of counsel, relying on assertions of fact outside our record on appeal, his claims are appropriately raised not on direct appeal, but rather on petition for a writ of habeas corpus. (See In re Bower (1985) 38 Cal.3d 865, 872 ["when reference to matters outside the record is necessary to establish that a defendant has been denied a fundamental constitutional right[,] resort to habeas corpus is not only appropriate but required"]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [if the record on appeal is silent as to the reason for counsel's challenged actions or inactions, any claim of ineffective assistance of counsel is more appropriately decided by habeas corpus].) --------
Because defendant did not obtain a CPC, he cannot raise issues underlying his guilty or no contest plea on appeal. (See People v. Panizzon (1996) 13 Cal.4th 68, 76-79 (Panizzon).) Instead, defendant's appeal is limited to "postplea claims, including sentencing issues, that do not challenge the validity of the plea." (People v. Cuevas (2008) 44 Cal.4th 374, 379.) A CPC is also required to challenge a stipulated sentence that was "an integral part of the plea bargain." (People v. Enlow (1998) 64 Cal.App.4th 850, 853-854, citing Panizzon, supra, at p. 78.)
Here, in exchange for defendant's plea, the People dismissed a felony charge and struck an enhancement allegation. The parties also agreed to a specified sentence and the underlying calculations therefor. Thus, as in Panizzon and Enlow, the stipulated term was an integral part of the plea.
Defendant's sentence was not rendered unlawful by the recent amendments to section 12022.5. A CPC is therefore necessary to challenge the sentence on appeal. (Panizzon, supra, 13 Cal.4th at p. 78.)
Our independent review of the record reveals that the trial court, apparently inadvertently, failed to dismiss the balance of the pending charges, as contemplated in the negotiated plea agreement. We modify the judgment (§ 1260) in order to conform the judgment to the plea.
Having considered all of the briefing and undertaken an examination of the entire record pursuant to People v. Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed as modified.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Renner, J.