Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-529829
Swager, J.
Defendant appeals from a judgment following his plea of no contest and imposition of sentence. 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 in his favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see also Smith v. Robbins (2000) 528 U.S. 259.) Counsel has advised defendant that he can file a supplemental brief raising additional points he would like to call to our attention. He has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from a no contest plea, we need only summarily recite the facts pertinent to the underlying convictions as necessary to our limited review on appeal. The facts are taken from the probation report.
A probation search of the residence defendant shared with Shannon Symons was conducted by officers of the Sonoma County Narcotics Task Force on January 17, 2008. Inside the residence the officers found bags of methamphetamine, marijuana buds, scales, a list of monetary notations, a folding knife for cutting narcotics, plastic packaging materials, bullets of various calibers, and a single-shot 12-gauge shotgun.
When defendant appeared for the scheduled preliminary hearing on February 22, 2008, he expressed concern with the representation afforded by his appointed attorney and requested a continuance to obtain private counsel. The trial court denied the request for a continuance of the preliminary hearing as untimely, but advised defendant that he was free to obtain private counsel.
The court then heard the “specific reasons� from defendant for his complaint that he was not “being adequately represented� by his appointed defense counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) Defendant protested that counsel had not adequately prepared or consulted with him, failed to inquire into the “factual basis of the case,� did not represent his “best interests,� and advised him that he was “a criminal� rather than a drug addict and needed “to go to prison.�
Counsel responded that he did not tell defendant he was “a criminal,� but rather advised him, in light of the alleged prior conviction enhancements and the weight enhancement, that he was statutorily ineligible for probation or a “C.R.C. commitment,� and this is “a mandatory State Prison� case with a potential maximum term of 15 years 4 months. Counsel added that he felt the prosecution’s offer of 7 years 4 months, with “no strike liability,� was beneficial to defendant, and encouraged him to accept it. Counsel agreed that defendant “is in need of treatment and wants treatment,� but thought that possibility was “unlikely� due to the unwillingness of the prosecution to strike the weight enhancement. Counsel declared that he had thoroughly reviewed the police reports and was ready to proceed with the preliminary hearing. The trial court found that defendant’s appointed counsel was adequately representing him, and denied the Marsden motion, expressly without precluding him from “hiring a private attorney to represent� him.
At the afternoon session the same day, the parties indicated that a negotiated disposition had been reached for defendant to enter a no contest plea to possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)), and possession of ammunition (Pen. Code, § 12316, subd. (b)(1), and admit two prior felony convictions (Health & Saf. Code, §§ 11370.2, subd. (c), 11378). The court informed defendant that pursuant to the plea agreement he “was ineligible for probation because of the prior conviction,â€� and “this would be a mandatory State Prison sentenceâ€� of 7 years 4 months. Any punishment for violation of probation in a separate misdemeanor case against defendant would be concurrent. In exchange, the prosecution agreed to dismiss the weight enhancement and firearm enhancement allegations. Defendant expressed that he understood the terms of the negotiated disposition, particularly the mandatory prison term.
Codefendant Shannon Symons also entered a negotiated no contest plea to possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), with the promise of a grant of felony probation and no state prison term.
The trial court proceeded to advise defendant of his constitutional rights and briefly discussed the standard waiver of rights form defendant had executed. Defendant entered his no contest plea to the three charges and admitted the two prior felony convictions for violations of Health and Safety Code section 11378. The court found that the plea had been entered freely, knowingly and voluntarily.
At the sentencing hearing on April 15, 2008, the court denied probation and imposed a state prison sentence of 7 years 4 months: the 3-year aggravated term for possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), a consecutive 3-year term for the prior conviction (Health & Saf. Code, § 11370.2, subd. (c)), 8 months for possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)), and 8 months for possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). Defendant was also ordered to register as a narcotics offender (Health & Saf. Code, § 11590), provide blood and saliva samples (Pen. Code, § 296), pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (a)(3)(A)), and a $200 parole violation restitution fine, suspended unless parole is revoked (Pen. Code, § 1202.45). He was awarded a total of 103 days of sentence credits. Defendant subsequently filed a notice of appeal and was issued a certificate of probable cause.
DISCUSSION
“Penal Code section 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.] ‘Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.] [¶] The statutory requirement and its exceptions are embodied in rule 30(b)(4) of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless ‘the notice of appeal states that the appeal is based on: [¶] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [¶] (B) grounds that arose after entry of the plea and do not affect the plea’s validity.’ â€� (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.)
The current version of rule 30(b) of the California Rules of Court, is rule 8.304(b) (effective July 1, 2007), which provides “(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court—with the notice of appeal required by (a)—the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶] (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. [¶] (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal ‘Inoperative,’ notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. [¶] (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [¶] (B) Grounds that arose after entry of the plea and do not affect the plea’s validity. [¶] (5) If the defendant’s notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).â€�
A defendant seeking appellate review following a no contest plea must fully and timely comply with both Penal Code section 1237.5 and rule 30(b). (People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. Young (2000) 77 Cal.App.4th 827, 829.) Defendant obtained a certificate of probable cause, based upon a claim of lack of a knowing and voluntary plea. He is therefore entitled to obtain review of the validity of the plea in this appeal, as well as an examination of any sentencing errors. (People v. Jones (1995) 10 Cal.4th 1102, 1112, fn. 5; People v. Clark (1996) 51 Cal.App.4th 575, 580.)
We find no arguable search and seizure issues. Defendant did not make a motion to suppress evidence pursuant to Penal Code section 1538.5, and nothing indicates that the probation search of his residence was in any way unlawful.
The denial of defendant’s Marsden motion is not cognizable in this appeal, since the claimed Marsden error does not go to the legality of the proceedings resulting in the plea. (People v. Gonzalez (1993) 13 Cal.App.4th 707, 716; People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.) In any event, we find no error in the trial court’s denial of defendant’s request for substitution of appointed counsel, or in the refusal to grant him a continuance of the preliminary hearing to obtain private counsel.
Upon review of the record, and particularly the transcript of the negotiated plea, we conclude that defendant was thoroughly and accurately advised by the court and his counsel before entry of the plea, and the plea was made with a full awareness of the nature of the rights being waived and the consequences of the waiver. (People v. Smith (2003) 110 Cal.App.4th 492, 500.) The record does not reveal that defendant lacked competence or understanding to enter the plea.
A plea must also be voluntary. We do not discern any evidence that defendant entered the plea through duress, threats, mistake, coercion, ignorance or any other factor that surmounted his free and clear judgment. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123; People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
There are no sentencing errors. In imposing sentence, the trial court properly considered evidence in the record, including the information in the probation report and the argument of counsel. Defendant was statutorily ineligible for probation, and the imposition of the term of 7 years 4 months was both consistent with the plea agreement and in accordance with the law. (People v. Sutton (1980) 113 Cal.App.3d 162, 165-166.) In light of the negotiated disposition and defendant’s understanding of the court’s authority to sentence him to a term of the length imposed, the court was not required to provide reasons for sentence choices made. (People v. Stewart (2001) 89 Cal.App.4th 1209, 1215; People v. Villanueva (1991) 230 Cal.App.3d 1157, 1162.) The court was justified in imposing the restitution fines, requiring registration as a narcotics offender, and ordering defendant to provide blood and saliva samples. No error in the calculation of presentence custody credits is established.
Appellant was represented by counsel throughout the proceedings.
After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.
We concur: Marchiano, P. J., Margulies, J.