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People v. Mason

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 30, 2012
D059606 (Cal. Ct. App. Jan. 30, 2012)

Opinion

D059606

01-30-2012

THE PEOPLE, Plaintiff and Respondent, v. PAUL MICHAEL MASON, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD228318/ SCE293644)

APPEAL from judgments of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.

Appellant Paul Michael Mason entered negotiated guilty pleas in case Nos. SCD228318 and SCE293644, and he appeals from the final judgments entered after those pleas under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 368 U.S. 738 (Anders). Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from judgments resulting after guilty pleas entered in case Nos. SCD228318 and SCE293644. The facts and procedural background of each of the cases is discussed below. Case No. SCD228318

The People filed an information charging Mason with having committed felony petty theft with a prior on July 6, 2010 (Pen. Code, § 484), and alleging Mason had a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12) and prior convictions for theft and burglary (former § 666).

All statutory references are to the Penal Code, unless otherwise specified.

The version of the section 666 enhancement in effect at the time of the offense was that enacted by Statutes 2000, chapter 135, section 134.

On December 3, 2010, Mason pled guilty to felony petty theft with a prior and to the sentencing enhancement under section 666 (specifically admitting a prior grand theft conviction under § 487, subd. (d) [date of conviction Jan. 25, 1999]) in exchange for a prison sentence with a 16-month lid, to run concurrently with that imposed in an "El Cajon case" (case No. SCE293644). The factual basis for the plea was that Mason took property of another which was valued at less than $400, and that he had suffered a prior theft conviction. Mason waived time for sentencing within the statutory period.

Sentencing was held on March 8, 2011, together with the sentencing in case No. SCE293644. In case No. SCD228318, Mason was denied probation and sentenced to the low term of 16 months, the negotiated lid, to be served concurrently with the 32-month sentence imposed in case No. SCE293644. He received total custody credits of 368 days, comprised of 246 actual days and 122 days of section 4019 credits. The court also imposed a $200 restitution fine, with another $200 fine stayed pending successful completion of parole; a $40 court security fee; $30 critical needs account fee; and a $38 theft fine fee. Jurisdiction over victim restitution was reserved. Mason waived his right to be present at the victim restitution hearing.

Mason did not seek a certificate of probable cause.

Case No. SCE293644

On August 24, 2010, the People filed an information charging Mason with one count of burglary (§ 459); two counts of forgery (§§ 470, subd. (d), 475, subd. (c)); and alleging Mason had served three prison terms for felony convictions (§ 667, subd. (b)) and had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).

On January 24, 2011, Mason entered into a negotiated plea of guilty to second degree burglary and admitted a strike prior for residential burglary, in exchange for dismissal of the balance of the information and an indicated sentence of 32 months state prison time. The factual basis for the plea was that Mason entered a commercial building with the intent to commit a theft, after having suffered a strike prior.

At the March 8, 2011 sentencing, defense counsel made a motion to dismiss Mason's strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, which was denied by the court. The court denied probation and sentenced Mason to the indicated sentence of 32 months in state prison, to be served concurrently with his sentence imposed in case No. SCD228318; granted Mason 246 days actual custody credit and 122 days credit pursuant to section 4019, for a total credit of 368 days. The court ordered that Mason pay a $200 restitution fine, with another $200 fine stayed pending successful completion of parole; a $40 court security fee; $30 critical needs account fee; a $154 criminal justice administration fee; and a $38 theft fine fee. The court retained jurisdiction over the issue of victim restitution, and Mason waived his right to be present at any hearing on that issue.

Mason did not ask for a certificate of probable cause.

Mason timely appealed, stating in his notice of appeal that the issues appealed from related to sentencing or other matters occurring after the plea which did not affect its validity.

DISCUSSION

Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 368 U.S. 738, counsel listed as possible, but not arguable, issues: whether the admission of a single prior theft-related conviction in case in case No. SCD228318 was sufficient to support a felony sentence under the alternate sentencing provision of section 666, subdivision (a); whether Mason is entitled to challenge his felony sentence in case No. SCD228318 without first having obtained a certificate of probable cause; and assuming no probable cause certificate is required, did Mason's admission in case No. SCE293664 of a prior strike conviction otherwise bring his sentence in case No. SCD228318 within the provisions of section 666, subdivision (b), or was an admission of a strike prior required in case No. SCD228318 to trigger the penalty provisions in section 666, subdivision (b)?

We granted Mason permission to file a brief on his own behalf. Mason has responded in supplemental briefing. As we shall explain, the issues Mason presents either contest the validity of the negotiated pleas or challenge the very sentences to which he agreed as part of the pleas, and his failure to obtain certificates of probable cause preclude appellate review. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)

Mason argues he agreed to plead guilty to a strike or prison priors only if he would receive half time, an understanding which he says was confirmed by his attorney (attorney "said I would get 16 months (low) doubled to 32 months, and would get half time per agreement"). It has long been held that appellate issues going to the validity of a plea require a defendant to obtain a certificate of probable cause pursuant to section 1237.5. (People v. Ward (1967) 66 Cal.2d 571, 574 (Ward) [§ 1237.5 was intended to apply to a situation in which defendant claimed his plea of guilty was not valid].) "Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature . . . ." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon), citing People v. DeVaughn (1977) 18 Cal.3d 889, 896.) Mason's claim is not cognizable on appeal.

Similarly, Mason's challenge to the "validity" of his admission of a strike prior goes to the overall validity of his plea and is not reviewable in the absence of a certificate of probable cause ("I also challenge the validity of my prior (1999) strike. No admission would in fact warrant that no prior strike took place, hence the prosecution would have to bare the burden of proof"). A voluntary plea of guilty is the equivalent of a conviction and amounts to an admission of every element of the crime: after a guilty plea is properly received, the prosecution is under no duty to prove the crime. (People v. Jones (1959) 52 Cal.2d 636, 651.) Thus Mason's challenge to his strike admission in the guilty plea entered in case No. SCE293664 is, in reality, a challenge to the validity of the plea itself, which requires a certificate of probable cause to appeal. (§ 1237.5; Ward, supra, 66 Cal.2d at p. 574.)

Mason's briefing next presents a series of issues ostensibly challenging his sentence in case No. SCD228318. Although not entirely clear, Mason appears to argue that his felony conviction for petty theft with a prior in case No. SCD228318 should have been treated as a misdemeanor and sentenced under section 666, subdivision (a), and that he is entitled to serve his sentence in county jail under sentencing realignment. To the extent Mason attempts to argue that his conviction was not a felony for purposes of the enhancement under section 666, subdivision (a), the claim is barred by his failure to secure a certificate of probable cause. (People v. Arwood (1985) 165 Cal.App.3d 167, 172 [challenge to the imposition of an enhancement is not cognizable on appeal absent a certificate of probable cause where the enhancement was imposed as a result of appellant's admission of prior felony within the meaning of the then-worded enhancement statute].) Furthermore, Mason's challenge to the 16-month negotiated "lid" prison sentence received in case No. SCD228318 is a challenge to the trial court's authority to impose the sentence and, as such, is a challenge to the validity of the plea, which requires a certificate of probable cause. Absent such a certificate, he may not complain on appeal that the imposed negotiated maximum sentence violated section 666, subdivision (a) or that he is entitled to be incarcerated in county jail under sentencing realignment. (People v. Shelton (2006) 37 Cal.4th 759, 769; People v. Cuevas (2008) 44 Cal.4th 374.)

This was amended by Statutes 2010, chapter 219, section 15, effective September 9, 2010.

Mason appears to confuse the 16-month negotiated "lid" concurrent prison sentence for petty theft with a prior, which he received in case No. SCD228318, with the 32-month indicated sentence imposed for his conviction of second degree burglary with a strike prior under his guilty plea in case No. SCE293664.

Finally, Mason asserts an unspecified general challenge to California's sentencing enhancement scheme ("California is the only state in the United States that gives a person enhancements for a previous felony conviction in other states"), and then asserts his sentence constitutes cruel and unusual punishment. Without having secured a certificate of probable cause, Mason's challenges are not subject to review. (Panizzon, supra, 13 Cal.4th at p. 78 [certificate of probable cause needed when defendant claimed on appeal that his negotiated sentence constituted cruel and unusual punishment].)

Mason may not seek a late certificate of probable cause as he requests. (In re Chavez (2003) 30 Cal.4th 643, 653.)
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A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent appellate counsel has represented Mason on this appeal.

DISPOSITION

The judgments are affirmed.

____________

IRION, J.
WE CONCUR: ____________
MCCONNELL, P. J.
____________
HALLER, J.


Summaries of

People v. Mason

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 30, 2012
D059606 (Cal. Ct. App. Jan. 30, 2012)
Case details for

People v. Mason

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PAUL MICHAEL MASON, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 30, 2012

Citations

D059606 (Cal. Ct. App. Jan. 30, 2012)