Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM1263. Steven D. Barnes, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Poochigian, J., and Detjen, J.
PROCEEDINGS
Appellant, Floyd Anthony Hunter, was charged in a first amended consolidated information filed August 28, 2008, with felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Appellant was also charged with enhancements for personally using a firearm (§ 12022.5, subd. (a)) and for being armed with a handgun (§ 12022, subd. (a)(1)).
Unless otherwise designated, all further statutory references are to the Penal Code.
On August 28, 2008, appellant entered into a plea agreement in which he would admit felony assault and personal use of a firearm and that he would be placed on probation. The trial court advised appellant of the consequences of his plea and explained his constitutional rights pursuant to Boykin/Tahl. One of the consequences of his plea, the court explained to appellant, was that he faced a prison sentence as low as five years or as high as 14 years. The parties stipulated to a factual basis for the plea. Appellant pled no contest to felony assault by means likely to cause great bodily injury and admitted the gun use enhancement.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
The prosecutor stated that had the case proceeded to trial, the prosecution would have presented evidence that on April [6], 2007, appellant, assisted by his brother, assaulted Gustavo Amaral with force likely to produce great bodily injury. Appellant was holding a handgun while he was assaulting the victim in violation of section 12022.5, subdivision (a).
Toward the conclusion of the change of plea hearing, the court placed appellant on felony probation for five years upon various terms and conditions. Appellant admitted the current offense constituted a violation of his probation in two unrelated misdemeanor cases. The court found appellant in violation of probation but reinstituted probation.
On July 13, 2009, a petition was filed alleging appellant violated the conditions of his probation by submitting a urine sample that tested positive for methamphetamine and for being a felon in possession of ammunition in violation of section 12316, subdivision (b)(1). On September 14, 2009, appellant admitted he had a positive drug test as alleged in the petition. On October 16, 2009, the court found it would be inappropriate to reinstate probation and sentenced appellant to prison for the upper term of four years for felony assault likely to cause great bodily injury and to a consecutive midterm of four years for the gun use enhancement for a total prison sentence of eight years. The court granted appellant custody credits of 359 days plus conduct credits of 53 days for total credits of 412 days.
Appellant is not entitled to receive additional custody credits pursuant to section 4019 as amended on January 25, 2010. Because appellant has an enhancement for using a gun pursuant to section 12022.5, subdivision (a), he has committed a violent felony under section 667.5, subd. (c)(8). Appellant is not, therefore, entitled to one-for-one credits and he is not entitled to additional custody credits under section 4019 even if they are found to apply retroactively. (§ 4019, subds. (b)(2) & (c)(2).)
On November 13, 2009, appellant filed a motion to stay execution of judgment and a motion to withdraw his plea based on alleged new evidence. On November 17, 2009, the court denied appellant’s request for an order shortening time for service of his motion to withdraw his plea. The court denied appellant’s motion to withdraw his plea, finding the attached declaration untrustworthy. The court also found the motion to be untimely under section 1018. The court denied appellant’s motion for stay of execution of his sentence.
FACTS
Gustavo Amaral frequented the Tachi Palace and Casino. There he met appellant, appellant’s brother Derek Hunter, Sheldon Griffith, and Bobette Valenzuela, who had been engaged to appellant. On April 6, 2007, at noon, Griffith called Amaral and asked him if he wanted to go to the casino. Thirty minutes later, Griffith asked Amaral to meet him at a Texaco station in Hanford. Amaral got into the back of Griffith’s car. Instead of driving into the casino parking lot, Griffith turned into the Tachi-Yokut reservation just east of the casino.
Amaral was worried he would not be able to exit the car. Griffith told Amaral that he would park away from appellant’s home. As a Lincoln Navigator drove up to Griffith’s car, Amaral pled with Griffith to leave. Instead, Griffith drove to appellant’s residence and into appellant’s garage. Derek Hunter closed the garage door. Griffith, appellant, and appellant’s brother yelled at Amaral to get out of the car. Appellant began to hit Amaral with a closed fist and told him to “shut the fuck up.” As Amaral tried to defend himself, appellant pulled out a handgun and pointed it directly at Amaral. Both appellant and Derek Hunter hit Amaral.
Appellant kept demanding that Amaral look him directly in the eye. Amaral pled with appellant not to kill him. Appellant told Amaral to stand up and to go inside the house and sit down. Appellant told Amaral not to tell anyone what had happened. Amaral had swelling on both sides of his forehead, his lips were swollen, and he had fresh red marks on his face. Amaral also suffered blurred vision out of his right eye. Detectives executing a search warrant on appellant’s home found two handguns and ammunition for each gun.
Appellant told investigators that Amaral had beat up his (appellant’s) fiancée in the past and got her started using methamphetamine. Appellant admitted hitting Amaral but explained that Amaral had a handgun between his legs and appellant grabbed it. Appellant said Amaral was lucky that appellant had not “hurt him bad.”
MOTION TO WITHDRAW PLEA
On November 13, 2009, appellant filed a motion to stay execution of judgment and a motion to withdraw his plea based on alleged new evidence. On November 17, 2009, the court denied appellant’s request for an order shortening time for service of his motion to withdraw his plea.
The declarations of the appellant and Bobette Valenzuela were attached. Valenzuela stated that Amaral had beat her and threatened appellant’s life using a gun. Valenzuela said that Amaral came into her home days later with minor injuries to his face and boasted he got appellant arrested. Valenzuela claimed she was coached by Amaral to deny that he had beaten her, deny Amaral had a gun, and to blame appellant. Valenzuela stated that she invoked her Fifth Amendment right regarding self-incrimination at an Evidence Code section 402 hearing, not because she was afraid of self-incrimination concerning the events of this case, but because she feared Amaral.
Appellant declared that he believed Valenzuela was a material witness in the case and that had she testified, she would have been beaten. Appellant set forth hearsay statements that Amaral confessed to Valenzuela that Amaral made false statements that appellant and his brother assaulted him and took premeditated steps to murder appellant. Appellant claimed that when he entered his change of plea he was unaware of Amaral’s admissions and his threats to Valenzuela.
The trial court denied appellant’s motion to withdraw his plea, finding the attached declarations untrustworthy. The court also found the motion to be untimely under section 1018. The court denied appellant’s motion for stay of execution of his sentence.
Under section 1018, a defendant has up until six months after being placed on probation to bring a motion to withdraw a guilty plea. Appellant brought his motion nearly fifteen months after he entered his change of plea.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on December 14, 2010, we invited appellant to submit additional briefing. To date, he has not done so.
Through his appellate counsel, however, appellant has requested that we address fourteen issues. Most of these issues are citations to provisions of the United States Constitution or to provisions of the Penal Code and fail to make any reference to the procedures or facts of appellant’s case. With the exception of the first and tenth issues, which relate respectively to sentencing and custody credits, the remaining issues appear related to appellant’s underlying conviction.
There are jurisdictional impediments to appellant’s attack on his underlying conviction. First, when appellant entered his change of plea and was placed on probation on August 28, 2008, any issues he had with his conviction became appealable when the trial court placed him on probation. Appellant failed to appeal from the trial court’s orders of August 28, 2008. An order placing a defendant on probation is an appealable order. In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on appeal from a later appealable order or judgment. (§ 1237, People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; also see In re Osslo (1958) 51 Cal.2d 371, 382.)
Second, appellant failed to obtain a certificate of probable cause. He cannot, therefore, attack the validity of his change of plea or plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 77-79.) To the extent that appellant has raised issues concerning the validity of his plea or the factual basis for his plea, we summarily reject them.
As we explained above in footnote four, appellant is not entitled to additional custody credits. We also reject appellant’s contention that the trial court abused its discretion in failing to treat his offense as a misdemeanor. Appellant pled no contest to felony assault by means likely to cause great bodily injury and was advised by the trial court that a consequence of his plea was a prison sentence as high as 14 years. Appellant was placed on probation but violated the conditions of probation. The trial court did not abuse its sentencing discretion in treating appellant’s offense as a felony rather than a misdemeanor.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.