Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. TA075327 & TA086754. Kelvin D. Filer, Judge.
Jamar R. Hearns, in pro. per., and Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, J.
Jamar Romon Hearns contends he received an illegal sentence because the court sentenced him as a second “strike” offender based on a prior misdemeanor conviction. Hearns contends his prior conviction was neither a felony nor a “strike” offense because the court granted probation and ultimately imposed what amounted to a misdemeanor sentence. We affirm.
2004 Case
On July 28, 2004, Hearns went to a witness’s apartment to tell her not to testify in her ex-boyfriend’s upcoming murder trial. Officers who had just arrived at the apartment to transport the witness to court observed Hearns telling the witness not to testify. The officers arrested Hearns for attempting to intimidate the witness, for failing to follow the officers’ orders, and for providing false identifying information.
A felony complaint charged Hearns with attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2) – count 1) and resisting, obstructing, or delaying a peace officer or EMT (§ 148, subd. (a)(1) – count 2).
Further unmarked statutory references are to the Penal Code.
Appearing with counsel, and before the preliminary hearing, on July 15, 2004, Hearns entered a negotiated plea of no contest to the charge of attempting to dissuade a witness (§ 136.1, subd. (a)(2)) in exchange for a grant of three years’ formal probation and dismissal of the remaining charge. The prosecutor stated that the District Attorney would have no objection to reducing the offense to a misdemeanor if Hearns successfully completed probation.
Hearns waived his constitutional rights and pleaded no contest to a felony offense of attempting to dissuade a witness. (§ 136.1, subd. (a)(2).) Defense counsel joined in the waivers, concurred in Hearns’s plea, and stipulated to a factual basis for the plea. The court found that Hearns had intelligently, voluntarily and knowingly waived his constitutional rights and that there was a factual basis for the plea.
In accordance with the plea agreement the court suspended imposition of sentence and granted Hearns three years’ of formal probation on condition he spend 27 days in county jail, pay related fines and fees, and comply with various terms of probation. As part of the negotiated plea, the court dismissed the remaining count in the interest of justice (§ 1385).
2007 Case
Hearns was charged with new criminal offenses and on February 2, 2007, the court revoked probation and remanded him into custody. The hearing on the probation violation trailed the proceedings in Hearns’s new case (TA086754).
Represented by private counsel Hearns pleaded guilty to armed robbery. On April 10, 2008, and before sentencing on his armed robbery conviction, Hearns’s counsel filed a motion to withdraw Hearns’s 2004 no contest plea to attempting to dissuade a witness (§ 136.1, subd. (a)(2)). In his motion, Hearns contended that he was unaware that the conviction was a “strike” offense that could be used to enhance punishment for a future felony conviction. Hearns asserted that he thought he was pleading to a nonstrike offense which would be classified a misdemeanor on successful completion of probation.
On July 3, 2008, the court stated that it lacked jurisdiction to consider Hearns’s request to withdraw his 2004 no contest plea because Hearns had not filed his motion to withdraw his plea within six months of the court’s grant of probation (citing § 1018). Based on Hearns’s prior felony conviction the court sentenced him as a second “strike” offender in the armed robbery case (TA086754).
Section 1018 provides in pertinent part: “On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted....”
In the probation revocation portion of the hearing, the court found Hearns in violation of probation and Hearn’s counsel conceded that Hearns had not successfully completed probation. The court revoked and reinstated probation on condition Hearns serve 365 days in the county jail and then granted Hearns credit for time served of 365 days.
Issues on Appeal
Hearns filed a notice of appeal, stating he was appealing from his “conviction,” “sentence,” and “commitment” imposed on July 3, 2008. Hearns did not request a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(1).) We appointed counsel to represent him on appeal. After an examination of the record, counsel filed an opening brief in which counsel raised no issues. On July 7, 2009, we advised Hearns that he had 30 days within which to personally submit any contentions or issues he wished us to consider.
On July 20, 2009, Hearns filed a letter brief in which he argued that he was not advised that his conviction for attempting to dissuade a witness would constitute a “strike” prior; the record of the prior proceeding shows that he was not advised by either the court or the prosecutor that his plea of no contest to the charge would qualify as a “strike” conviction with the consequence of enhanced punishment for a future felony conviction; and that his sentence of time served of 365 days in county jail with no prison time ordered demonstrates that the offense of attempting to dissuade a witness was a misdemeanor and not a felony “strike” conviction (§ 17, subd. (b)(1)). Hearns thus asserts that the sentence on his armed robbery conviction was unlawfully enhanced and requests this court to modify the sentence to eliminate the doubled sentence (§ 1170.12, subd. (c)(1)) and five-year enhancement imposed (§ 667, subd. (a)(1)) as a result of his prior conviction for attempting to dissuade a witness (§ 136.1, subd. (a)(2)).
We have examined the entire record and conclude that Hearn’s appointed counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 119, 124.)
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 its validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) As part of his appeal, Hearns argues that he was not informed that his no contest plea to the felony offense of attempting to dissuade a witness could qualify as a “strike” conviction for purposes of enhancing punishment for a later felony conviction, and that he would not have entered a no contest plea had he been aware of this potential consequence. This particular claim is a direct attack on the validity of his plea and is thus not reviewable because Hearns did not seek or obtain a certificate of probable cause. (§ 1237.5, Cal. Rules of Court, rule 8.304(b)(1).) Hearns also, however, claims that he received an unlawful sentence on his later conviction because the offense to which he pleaded nolo contendere was only a misdemeanor, and not a “strike” offense. To the extent his appeal raises this postplea question of proper punishment it is not a challenge to the plea’s validity and thus does not require a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1100 [distinguishing between certificate issues which are not reviewable and noncertificate issues which may be reviewed provided they present no challenge to the plea’s validity]; People v. Jones (1995) 10 Cal.4th 1102, 1109 [claims of error in postplea proceedings to determine punishment are cognizable on appeal even without a certificate of probable cause]; cf. People v. Panizzon (1996) 13 Cal.4th 68, 79 [a challenge to a negotiated sentence imposed as part of a plea bargain requires a certificate of probable cause].)
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:
Rule 8.304(b)(4) of the California Rules of Court provides that a defendant who pleads guilty or nolo contendere need not obtain a certificate of probable cause in order to appeal “if the notice of appeal states that the appeal is based on:
The crime of attempting to dissuade a witness described in section 136.1, subdivision (a)(2) is a so-called “wobbler” offense, punishable in the court’s discretion as either a misdemeanor or a felony. Hearns argues that his prior conviction was a misdemeanor because section 17, subdivision (b)(1) specifies that a “wobbler” becomes a misdemeanor for all purposes unless the court imposes a state prison term. Because he initially received a grant of probation and then at the probation revocation hearing received a sentence of 365 days in county jail and no prison time, Hearns asserts that section 17, subdivision (b)(1) compels a finding that his prior conviction was a misdemeanor, not a “strike” offense, and thus the enhanced punishment he received on his later conviction was unlawful. We disagree.
Subdivision (b)(1) of section 17 provides: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following conditions: [¶] “(1) After a judgment imposing a punishment other than imprisonment in the state prison.” Section 17, subdivision (b)(1) does not apply because the court did not impose punishment after judgment on his prior conviction but instead suspended imposition of sentence and granted Hearns probation.
Section 17, subdivision (b)(3) states that a “wobbler” offense may be declared a misdemeanor “[w]hen the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” As part of the plea negotiations the prosecutor offered to have the conviction reduced to a misdemeanor if Hearns successfully completed probation and thus the court might have declared his conviction a misdemeanor under the alternative of section 17, subdivision (b)(3) had Hearns successfully completed probation. Hearns, however, did not complete probation and the court had no occasion to declare his conviction a misdemeanor under section 17 or otherwise.
Under the Three Strikes law, the sentence imposed is not determinative of the question whether a prior conviction constitutes a “strike” for purposes of enhanced punishment for a later felony conviction. Section 1170.12, subdivision (b) states: “Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as” any “violent” or “serious” felony listed in section 667.5, subdivision (c) or section 1192.7, subdivision (c). Section 1170.12, subdivision (b)(1) specifies that the determination whether a prior felony conviction is a qualifying “strike” under the Three Strikes law “is not affected by the sentence imposed unless the sentence automatically, upon initial sentencing, converts the felony to a misdemeanor.” As pertinent here, section 1170.12, subdivision (b)(1) further declares that “[n]one of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of this section: [¶] (A) The suspension of imposition of judgment or sentence....”
The felony offense of attempting to dissuade a witness in violation of section 136.1 is listed as a “serious” felony in 1192.7, subdivision (c)(37) and is thus a qualifying “strike” offense within the meaning of the Three Strikes law. Here Hearns was convicted of a qualifying felony offense for which the court suspended imposition of sentence and granted probation, and such conviction remained a felony under 1170.12, subdivision (b)(1) unless or until the court declared otherwise under section 17, subdivision (b)(3). Because Hearns did not successfully complete probation, and the court did not declare his prior conviction a misdemeanor, Hearns was properly sentenced as a second “strike” offender for his armed robbery conviction.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J. CHANEY, J.
“(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
“(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
“(A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or
“(B) Grounds that arose after entry of the plea and do not affect the plea’s validity.”