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People v. Labossiere

California Court of Appeals, Fourth District, Third Division
Jul 29, 2008
No. G039613 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 07WF1971, Leon Emerson, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Michelle Rogers, 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 Kevin Ray Labossiere on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against her client, but advised the court she 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 September 18, 2007, charged Labossiere and two codefendants, Christopher Mullins and Kelly Hryze, with first degree residential robbery (Pen. Code, §§ 211, 212.5, subd. (a)), first degree residential burglary (§§ 459, 460, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), unlawful vehicle taking (Veh. Code, § 10851, subd. (a)), and criminal threats (§ 422), occurring on August 14, 2007. The complaint alleged a nonaccomplice was present during the burglary (§ 667.5, subd. (c)(21)) and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). Finally, it alleged defendant had served two separate prison terms within the meaning of section 667.5, subdivision (b).

All statutory citations are to the Penal Code unless otherwise noted.

On September 18, 2007, defendant pleaded guilty to all charges and admitted the enhancements. In open court, defendant acknowledged he had executed an “Advisement and Waiver of Rights for a Felony Guilty Plea” form and “gone over the[] waivers and the counts” with his attorney, who also signed the form stating he had, among other things, explained to defendant the rights set forth on the form and discussed the possible sentence ranges with him. The form provided the court would sentence defendant to prison for seven years (he faced a maximum of over 14 years). At the plea hearing, the court asked defendant whether he understood “that these pleas that even though it adds up to 14 years, eighth months total, that you’re going to be sentenced to seven years.” Defendant said he understood.

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 seven years in prison. A minute order reflects the court imposed the four-year midterm for robbery, a one-year consecutive term for assault, and two, one-year enhancements for defendant’s two separate prior prison terms. The court imposed concurrent terms or stayed punishment on the other counts and enhancements. Finally, the court ordered defendant to pay a $200 restitution fine, imposed and suspended an identical parole revocation fine, ordered payment of a $100 security fee, ordered DNA testing, and set a hearing to impose restitution to the victim.

Defendant subsequently requested a certificate of probable cause asserting his guilty plea was illegal: “I am ADA, And XXCM’s And I can truly say that I am not there At times. The time that I[’]ve got to get sober. And my Head Back, And kind of on track, I feel that I was very much Done worng [sic] on this case. I was coeresed [sic] IN to singing my first plea Bargain[.] I really Did not know what I was Doing!! And I would like to Request my guilty Back thank you.”

Defendant dated the request for certificate of probable of cause and notice of appeal form November 14, 2007. The document was filed in the superior court on November 28, 2007. On December 10, the trial court denied defendant’s request for a certificate of probable cause.

Counsel identifies the following potential claims to assist our review: “A. Is appellant’s plea of guilty constitutionally valid?”; “B. Did the trial court properly advise appellant of the sentence he would receive under the plea agreement?”; and “C. Was appellant’s written appeal waiver valid?”

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 and do not affect the plea’s validity. (People v. Shelton (2006) 37 Cal.4th 759, 766.) Neither of these exceptions apply here. We also note nothing in the appellate record suggests defendant’s plea or waiver was coerced or otherwise invalid. The record also demonstrates the trial court advised defendant in writing and on the record in open court that he would receive a seven-year sentence. The sentence was legally authorized and within the terms of his plea agreement.

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: O’LEARY, ACTING P. J., IKOLA, J.


Summaries of

People v. Labossiere

California Court of Appeals, Fourth District, Third Division
Jul 29, 2008
No. G039613 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Labossiere

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KEVIN RAY LABOSSIERE, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jul 29, 2008

Citations

No. G039613 (Cal. Ct. App. Jul. 29, 2008)