Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC170187
Banke, J.
Defendant Nicholas Moscouplos appeals his convictions, following guilty pleas, of false personation (Pen. Code, § 529) and identity theft (§ 530.5, subd. (a)). His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Background
On May 13, 2010, Mohamed Salem, an attorney practicing in Marin County, contacted the police and reported someone was using his name and bar number in civil lawsuits and in connection with a Web site advertising mortgage and foreclosure relief services. The police identified defendant as the individual using Salem’s name and bar number, and obtained a warrant to search defendant’s business premises. They discovered files for a dozen civil cases in seven counties in which defendant was appearing as counsel of record under Salem’s name and bar number. They also identified 11 individuals who had hired defendant for legal services, and further investigation disclosed they had collectively paid defendant over $32,000 for such services.
On May 18, 2010, the Marin County District Attorney filed a criminal complaint against defendant, charging him with one count of false personation in violation of section 529, and one count of identity theft in violation of section 530.5, subdivision (a). Defendant entered a not guilty plea on June 11, 2010.
On August 17, 2010, defendant executed a formal waiver of rights form and entered a change of plea, pleading guilty to both charges. The trial court conducted a thorough voir dire of defendant to ensure he fully understood the nature of the charges against him, the possible defenses, the rights he was waiving (including foregoing any argument that section 654 applied), and he could be sentenced consecutively on the two counts. Counsel stipulated the affidavit submitted in support of the search warrant provided a factual basis for the pleas.
Defendant was sentenced on September 28, 2010. At the sentencing hearing, the prosecutor presented additional evidence that defendant had plagiarized material from a comprehensive mortgage audit prepared by a legitimate mortgage fraud and forensic analyst and filed in a bankruptcy proceeding in the United States Bankruptcy Court for the Southern District of Texas. When the court inquired why the prosecutor was not asking for prison time, he replied defendant had no prior record and, more importantly, the victims stood a better chance of recovering restitution if defendant was able to seek employment. The defense added defendant was 53 years old, had four children, and accepted responsibility for his illegal conduct and had agreed to resolve the case even before a preliminary hearing. While emphasizing the seriousness of defendant’s conduct—taking “advantage of those who were vulnerable”—the court sentenced defendant in accordance with the negotiated disposition. Imposition of sentence was suspended, and defendant was placed on five years of supervised probation. The terms and conditions of probation included that he serve consecutive six-month jail sentences on the two charges and not be involved in “any business involving loans or modifications of other people, ” which included not “accepting employment or soliciting business as a mortgage auditor, ” not having “financial dealings for any other person, ” and “not to have in his possession financial information of any person other than himself and/or his family.” After defense counsel objected to the latter condition on the basis of Lent, defendant agreed to the terms and conditions stated by the court. Defendant filed a timely notice of appeal on October 2, 2010.
People v. Lent (1975) 15 Cal.3d 481, abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.
Discussion
Section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under section 1538.5, subdivision (m); and (2) postplea sentencing issues. (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Since no certificate of probable cause was sought or issued, defendant is not able to challenge the validity of his plea or any other matter that preceded its entry. (People v. Cole (2001) 88 Cal.App.4th 850, 868.) And on this record, there is no search and seizure issue. At the change of plea and sentencing hearings, the trial court considered all relevant matters, made all necessary and appropriate findings, and imposed required fines and fees. There is no basis to challenge any of the terms and conditions of probation; all pass muster under People v. Lent, supra, 15 Cal.3d at page 486, and were well within the court’s discretion.
Disposition
After a full review of the record, we find no arguable issues and affirm the judgment.
We concur: Margulies, Acting P. J., Dondero, J.