Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz and Timothy S. Buckley , Judges.[*]Super. Ct. No. 07CM0976
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge Schultz accepted appellant’s change of plea. Justice Buckley sentenced appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Wiseman, J.
PROCEEDINGS
Appellant, Melody Ann Sprouse, was charged in an information filed April 23, 2007, with petty theft with a prior conviction qualifying the allegation as a felony (Pen. Code, §§ 484, subd. (a) & 666, count one) and second degree burglary (§ 459, count two). The information alleged multiple prior prison term enhancements (§ 667.5, subd. (b)). On July 10, 2007, Sprouse agreed to a plea bargain in which she would admit count one and one prior prison term enhancement in exchange for the dismissal of the remaining allegations. Sprouse further agreed to a stipulated upper term sentence of three years on count one plus a consecutive sentence of one year for the prior prison term enhancement for a total sentence of four years.
All further statutory references are to the Penal Code.
The trial court advised Sprouse of the consequences of her plea and advised her of her constitutional rights pursuant to Boykin/Tahl. Sprouse waived her constitutional rights. The parties agreed to a factual basis for the plea. Sprouse pled guilty to count one and admitted one prior prison term enhancement. The remaining allegations were stricken.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
At the change of plea hearing, Sprouse reserved the right to challenge various items taken from the store for the purpose of establishing the amount of victim restitution. Sprouse later withdrew her challenge to specific items of victim restitution.
At sentencing on August 24, 2007, the court followed the terms of the stipulated plea by imposing the upper term of three years on count one and a consecutive term of one year for the prior prison term enhancement for a total prison term of four years. The court awarded applicable custody credits and imposed a restitution fine. The trial court denied Sprouse’s request for a certificate of probable cause.
Sprouse’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Sprouse was advised she could file her own brief with this court. By letter on December 7, 2007, we invited Sprouse to submit additional briefing. To date, she has not done so.
FACTS
On March 19, 2007, Officer Brent McCreary was working for the City of Hanford Police Department. McCreary contacted a loss prevention officer, Mr. Cuevas, at Wal-Mart concerning an incident in which Cuevas saw Sprouse taking merchandise off the shelves and placing it into white shopping bags. Sprouse attempted to leave the store, walking past point of sale, without paying for anything. The stolen items included an alarm clock and food. The total value of the items taken was $92.94. Sprouse told McCreary that she was on felony probation. Sprouse admitted taking the property from Wal-Mart.
It was unclear whether Sprouse also took an MP3 player.
DISCUSSION
We initially note that Sprouse failed to obtain a certificate of probable cause. Issues concerning the validity of her plea are generally not before us on appeal. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that Sprouse was fully advised of her constitutional rights pursuant to Boykin/Tahl. She was also advised of the consequences of her plea and the court established a factual basis for her plea.
In addition to the stipulation of the parties that there was a factual basis for the plea, Sprouse had a preliminary hearing which establishes the factual basis for her plea.
Sprouse’s plea establishes the elements of the theft offense with a prior conviction that she admitted. A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)
Sprouse’s sentence, though it was based on an upper term, was the product of a stipulated plea agreement by the parties, not a plea to a potential sentencing range with a so-called lid on the sentence. Also, Sprouse had a very lengthy adult criminal record dating back to 1995. Sprouse’s upper term sentence is justified by her extensive criminal history, a sentencing factor for which a jury finding is not required. (People v. Black (2007) 41 Cal.4th 799, 818-820.) If any error could be attributed to the sentencing court in imposing an upper term sentence, the error was harmless. (Ibid.)
Between 1995 and 1997, Sprouse had seven misdemeanor convictions for fighting in public, second degree burglary, cashing a check with insufficient funds, theft, theft of a credit card, and fraudulent use of a credit card. In 1998, Sprouse had two felony convictions for second degree burglary. In 2002 and 2004, Sprouse had felony convictions for theft with a prior conviction.
After independent review of the record, we conclude there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.