Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 544718
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following defendant’s entry of a plea of no contest to felony theft from a person (Pen. Code, § 487, subd. (c)), and misdemeanor carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), he was denied probation and sentenced to the middle term of two years in state prison, along with a concurrent term of 180 days for the misdemeanor conviction. 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 that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of defendant’s plea, our recitation of the facts pertinent to the offenses will be concise, and will be taken from the probation report, which in turn is based on the police report of the offenses.
Defendant was observed by a K-Mart loss prevention officer as he and his confederate Richard Smith entered the sporting goods department of the store. Defendant removed a pair of batting gloves from a display and concealed them in a bicycle repair kit he was carrying. He also placed two air pistols inside his jacket. Defendant and Smith then proceeded to the garden department, where Smith forcibly opened a door. From there, they then ran from the store into the parking lot without paying for the “concealed items.”
Defendant and Smith became “hostile and uncooperative” when they were approached by two loss prevention officers in the parking lot. Defendant refused to remove his hands from his waistband as requested and failed to comply with “orders to stop resisting.” The security officers were forced to restrain defendant by wrestling him to the ground. During the struggle a knife concealed in defendant's waistband was taken from him. Defendant and Smith were detained by the security officers until the police arrived. After defendant was apprehended by the police, a pair of batting gloves, two pellet pistols and a tire tube repair kit were found in his possession. Smith asserted to one of the police officers that he “did not do anything wrong;” defendant proclaimed that he “had a disability and did not know stealing was against the law.”
In an interview with the probation officer, defendant stated that he left the K-Mart store with merchandise in his possession because he became “disoriented” as the result of “an anxiety attack” and needed “to get some ‘fresh air.’ ” Defendant added that he resisted the store security officers due to his belief that he was “being jumped” by them when they approached unannounced.
Defendant was charged with robbery (Pen. Code, § 211), burglary of a commercial building (Pen. Code, § 459), petty theft with a prior conviction (Pen. Code, § 666), and unlawful possession of a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), along with enhancements for prior convictions and prior prison terms served (Pen. Code, § 667.5, subd. (b)). Defendant made a Marsden motion that was denied after a hearing on November 12, 2008. A plea agreement in the case resulted in defendant’s entry of a no contest plea on December 3, 2008, to a single “added count” of “felony theft from a person” in violation of Penal Code section 487, subdivision (c), in exchange for dismissal of the remaining charged offenses and enhancements. The plea agreement further contemplated that defendant would be referred to the “FACT Program” for determination of his eligibility for mental health treatment for his bipolar disorder. If defendant was denied participation in the FACT Program he would be sentenced on the theft conviction, and he also agreed to enter a plea to a misdemeanor violation of Penal Code section 12020, subdivision (a)(4).
People v. Marsden (1970) 2 Cal.3d 118.
Defendant was screened for services through the “the FACT Court,” but on January 8, 2009, found ineligible based on his unsuitability for probation. He appeared for sentencing on February 3, 2009, on both the felony and misdemeanor matters. In accordance with the plea agreement, defendant entered a plea to carrying a concealed dirk or dagger offense (Pen. Code, § 12020, subd. (a)(4)), which was reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b). Defense counsel proposed a grant of probation and referral to other specified residential or outpatient treatment programs. The trial court followed the recommendation of the probation report and found that defendant was not a suitable candidate for probation due to his numerous convictions, parole violations, and failures on probation or parole. The court imposed the middle term of two years for the theft conviction, and a concurrent term of 180 days for the misdemeanor conviction. The court also imposed a restitution fine of $200, a $20 court security fee, and $200 restitution fine pursuant to Penal Code section 1202.45, “suspended unless parole [was] ever revoked.” The present appeal was filed on February 9, 2009.
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.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant has neither requested nor obtained a certificate of probable cause, so he cannot challenge the validity of the plea or any other matter that preceded entry of the plea. (People v. Cole (2001) 88 Cal.App.4th 850, 868.)
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).”
We find no arguable search and seizure issues to discuss. Defendant did not make a motion to suppress evidence pursuant to Penal Code section 1538.5, and the record does not reveal any search and seizure issues to be considered. Nothing in the record indicates that either the arrest of defendant or the voluntary statement he gave to the arresting officer was unlawful.
There are no sentencing errors. We do not find from our review of the record that the trial court considered any impermissible information or imposed an unauthorized sentence. The court articulated appropriate reasons for the decision to deny probation. The denial of probation and imposition of a middle term sentence was in accord with the plea bargain, and was not abuse of discretion. (People v. Stuart (2007) 156 Cal.App.4th 165, 179.) The court was also justified in imposing the parole revocation fine and restitution fine. The section 1202.45 parole revocation fine was properly stayed. No error in the calculation of the total presentence custody credits of 241 days is established.
Defendant was represented by competent counsel throughout the sentencing 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.