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People v. Sullivan

California Court of Appeals, Third District, Placer
Apr 2, 2009
No. C060235 (Cal. Ct. App. Apr. 2, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS SULLIVAN, Defendant and Appellant. C060235 California Court of Appeal, Third District, Placer April 2, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 62-067645

NICHOLSON, Acting P. J.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

On August 1, 2007, defendant was charged with violating former Penal Code section 290, subdivision (f)(1) (now § 290.013, subd. (a)) (failure to inform authorities of change of address). The information alleged that defendant had two strikes (§ 667, subds. (b)-(i) [attempted rape and burglary, arising out of the same occasion in 1996]) and had served three prior prison terms (§ 667.5, subd. (b)).

All further undesignated section references are to the Penal Code.

On September 13, 2007, defendant’s Marsden motion was denied.

People v. Marsden (1970) 2 Cal.3d 118.

On September 28, 2007, defendant filed a Romero motion, which the People opposed. However, the motion was withdrawn after the trial court granted defendant self-representation.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

On February 15, 2008, defendant’s request for counsel was granted and the trial court appointed counsel.

On March 25, 2008, defendant executed a plea form with the assistance of counsel; the trial court confirmed on the record that defendant entered the plea knowingly and intelligently, and the parties stipulated to the preliminary hearing transcript as the factual basis for the plea. Under the plea agreement defendant pled guilty to the count charged and admitted the strike and prison term allegations, but reserved the right to bring a Romero motion. It was understood that if the trial court struck one strike, defendant’s maximum sentence would be nine years (the upper term of three years doubled, plus three years consecutive for the prior prison terms).

According to the probation report, defendant registered with the Roseville Police Department, noting his address as 202 Taylor Street #2 in Roseville. In June 2006, defendant’s parole officer tried to contact defendant there and was told defendant had abandoned the apartment. It was eventually discovered that he had failed to notify the Roseville Police Department he had abandoned the apartment and had not contacted any other agencies to register as required by former section 290.

On August 13, 2008, defendant filed a Romero motion.

On September 22, 2008, the trial court struck the burglary strike and imposed the nine-year term previously agreed to, with a parole period of three years upon release. The court also imposed a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 restitution fine to take effect only if parole was revoked (§ 1202.45), and a $20 court security fee (§ 1465.8). The court awarded defendant 776 days of conduct credit.

Defendant’s appointed appellate counsel has requested that this court independently review the entire record in the case. Having done so, we have detected nothing therein which would produce a more favorable outcome for defendant.

Appellate counsel also advised defendant of his right to file a supplemental brief in this court within 30 days of the date counsel’s brief is filed. Defendant has filed a supplemental brief in which he asserts: (1) trial counsel misrepresented the maximum term defendant would have to serve under the plea agreement as four to six years; had defendant known he could be sentenced to nine years in prison he would have rejected the plea offer and (2) the trial court erred under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) by imposing the upper term. These contentions are not cognizable because they attack the validity of defendant’s plea and the trial court denied him a certificate of probable cause. (§ 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

In any event, defendant’s contentions are meritless. The record does not support defendant’s assertion that trial counsel misrepresented defendant’s maximum exposure under the plea agreement. Furthermore, entering a plea pursuant to an agreement forfeits any claim of Cunningham error in imposing the agreed sentence. (People v. Black (2007) 41 Cal.4th 799, 816.) Finally, the trial court relied in part on defendant’s prior record to impose the upper term, which is a proper factor under Cunningham. (People v. Black, supra, 41 Cal.4th at p. 819.)

DISPOSITION

The judgment is affirmed.

We concur: HULL, J., ROBIE, J.

At the plea hearing, defendant admitted that he “[f]ail[ed] to register” after leaving his address.


Summaries of

People v. Sullivan

California Court of Appeals, Third District, Placer
Apr 2, 2009
No. C060235 (Cal. Ct. App. Apr. 2, 2009)
Case details for

People v. Sullivan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS SULLIVAN, Defendant…

Court:California Court of Appeals, Third District, Placer

Date published: Apr 2, 2009

Citations

No. C060235 (Cal. Ct. App. Apr. 2, 2009)

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