Opinion
F079585
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMMY FRANK JONES, JR., Defendant and Appellant.
Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1472098)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and De Santos, J.
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INTRODUCTION
Pursuant to a plea agreement, appellant Timmy Frank Jones, Jr., pled no contest to one count of violating Penal Code section 29800, subdivision (a)(1), possession of a firearm by a felon. In exchange, other counts were dismissed, and Jones received a three-year prison sentence, with execution suspended. Jones was released on probation with a surrender date. When Jones failed to surrender to authorities on the appointed date, he was arrested, and sentence was executed. Jones appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
Statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL SUMMARY
A search warrant was executed at the home of Jones and Teresa Caraveo on March 15, 2014. Several firearms and ammunition were found in the home. Caraveo claimed all the firearms belonged to her. However, she acknowledged the firearms were accessible to Jones. Jones had pictures of the firearms in text messages on his phone.
Jones was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and acknowledged he had a felony criminal record. Jones denied owning any of the firearms but admitted one of the firearms was under his mattress. He also admitted trying to broker a "deal" for the sale of some of the firearms.
On April 7, 2014, Jones was charged with four counts of possession of a firearm by a felon; one count of possession of ammunition by a person prohibited from owning a firearm; possession of an assault weapon; and possession of a controlled substance for sale. Jones initially pled not guilty and was released on bail.
On March 7, 2018, Jones entered a change of plea pursuant to a plea agreement. He pled no contest to one count of being a felon in possession of a firearm, a violation of section 29800, subdivision (a)(1). The plea agreement provided for dismissal of the other counts; that the aggravated term of three years in prison be imposed, but execution stayed; and that Jones be placed on five years' probation with 365 days local custody. He was given a surrender date of July 5, 2018.
Jones acknowledged that he understood the terms and his obligations while on probation. Jones was released on probation at the conclusion of the change of plea and sentencing.
Jones requested and was granted extensions of his surrender date, with a final surrender date of December 15, 2018. Jones failed to report to the probation officer as required and failed to surrender on the appointed date. A bench warrant was issued for his arrest. Jones was arrested on the warrant on March 30, 2019.
A contested violation of probation hearing was held on April 11, 2019. The probation officer testified. At the conclusion of the hearing, the trial court found Jones in violation of probation for failing to report in person as directed by probation and failing to surrender to custody on December 15, 2018.
At the sentencing hearing, defense counsel stated that Jones had difficulty reporting to probation because he had been diagnosed with breast cancer. The trial court stated that Jones could have called probation and made other arrangements. The trial court then noted that Jones had agreed to the three-year prison term as the appropriate sentence for his offense at the time he entered into the plea agreement.
The trial court opined that it had "discretion to give him something other than what the parties agreed to," but declined to do so in this case. The trial court imposed the agreed upon sentence of three years in prison and awarded 180 days of credit. Various statutory fines and fees were imposed. The abstract of judgment accurately reflects the trial court's oral pronouncement.
Jones filed a notice of appeal on June 28, 2019. He did not seek or obtain a certificate of probable cause.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, on November 22, 2019. That same day, this court issued its letter to Jones inviting him to submit a supplemental brief. The letter was returned because Jones had been moved to a different custodial location. The letter was sent to Jones at his new address. Jones did not submit a supplemental brief.
Jones pled pursuant to a plea agreement and did not obtain a certificate of probable cause. "A defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere,' unless he has obtained a certificate of probable cause. (§ 1237.5, subd. (b); see People v. Buttram (2003) 30 Cal.4th 773, 790 [§ 1237.5's purpose is 'to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted'].)" (People v. Cuevas (2008) 44 Cal.4th 374, 379.) "It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) "Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.] For example, 'when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was "part of [the] plea bargain." [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.' " (People v. Cuevas, at p. 379; People v. Buttram, at pp. 785-786.)
Accordingly, it is the general rule that when a specific sentence is an "integral part of the plea" agreement, a defendant may not challenge it on appeal without first obtaining a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 73; People v. Hester (2000) 22 Cal.4th 290, 295 [plea agreement for specified sentence constituted implicit waiver of defendant's right to contend sentence violated section 654].) This is because a specified sentence in a plea agreement "normally implies a mutual understanding of the defendant and the prosecutor that the specified [sentence] is one that the trial court may lawfully impose." (People v. Shelton (2006) 37 Cal.4th 759, 768.) A defendant's challenge to the specific sentence is "in substance a challenge to the validity of the plea." (Panizzon, at p. 76; People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Jones cannot challenge his plea or the plea agreement because he did not obtain a certificate of probable cause. The plea agreement called for a three-year prison term, execution of which was suspended, and Jones was placed on probation with a surrender date for local custody. He failed to comply with terms of probation and failed to surrender for custody on the appointed date. The trial court therefore imposed the agreed upon sentence of three years in prison and awarded 180 days of credit.
The trial court had fundamental jurisdiction to impose the sentence it did under the plea agreement and Jones received the benefit of a more lenient sentence as part of a negotiated plea agreement.
After a review of the record, we find there are no arguable factual or legal issues.
DISPOSITION
The judgment is affirmed.