Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. Nos. 199195, 200070, 201113
Margulies, J.
Jimmy Washington appeals from a judgment following a joint guilty plea in three cases. His counsel has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in defendant’s favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares he notified defendant that he could file a supplemental brief raising any issues he wishes to call to this court’s attention. No supplemental brief has been received.
Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm.
I. FACTS
A. Superior Court Case No. 199195
On January 1, 2006, in San Francisco, Officer Pak observed defendant walk to a parked car and remove a clear plastic bag containing a white substance from the right rear tire well. Officer Pak saw defendant hand the bag to another individual. He seized a plastic baggie from the right rear tire well of the car and defendant was arrested. The contents tested positive for 10.61 grams of cocaine base.
After a preliminary hearing, the court held defendant to answer on one count of possession of cocaine base for sale. (Health & Saf. Code, § 11351.50.) In addition to the count of possession of cocaine base for sale, the information alleged a Penal Code section 667.5(b) enhancement.
Defendant moved to set aside the information pursuant to Penal Code section 995. He contended the court deprived him of his right to cross-examine Officer Pak at the preliminary hearing by sustaining an Evidence Code section 352 objection when defense counsel asked whether the car where the cocaine base was hidden was between Officer Pak and defendant. The prosecutor argued the excluded testimony would have been cumulative because defense counsel’s question had already been asked and answered, and the limitation on cross-examination did not result in any prejudice. The court denied the motion to set aside the information.
B. Superior Court Case No. 200070
The statement of facts is based upon the facts as set forth in the opposition to defendant’s motion to suppress because defendant waived a preliminary hearing in this case.
On October 8, 2006, a police officer, who knew defendant had an outstanding arrest warrant, recognized defendant driving a car. After the officer detained defendant, a warrant check disclosed two active arrest warrants. The officer arrested defendant and called a police canine unit. A trained police dog alerted the officers to the presence of narcotics in the car, and the police retrieved a plastic bag containing base rock cocaine from the left interior quarter panel.
Defendant waived his right to a preliminary hearing. On October 11, 2006, the district attorney filed a complaint charging defendant with transporting base rock cocaine (Health & Saf. Code, § 11352, subd. (a)), possession of cocaine for sale (Health & Saf. Code, § 11351.5), driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and driving without a valid license (Veh. Code, § 12500, subd. (a)). It also alleged enhancement allegations pursuant to Penal Code sections 667.5, subdivision (b), 1203.073, subdivision (b)(6), and 12022.1.
Defendant filed a motion to suppress the evidence on the ground that the search was an unlawful inventory search. The hearing on the motion to suppress was continued several times. Ultimately, the court did not rule on the motion to suppress, because defendant entered a guilty plea before the motion was heard.
C. Superior Court Case No. 201113
On January 21, 2007, defendant was arrested for possession of MDMA, commonly known as ecstasy. The information, filed on March 13, 2007, charged him with a violation of Health & Safety Code section 11378, alleged he committed the offense while on bail (Pen. Code, § 12022.1), and alleged an enhancement pursuant to Penal Code section 667.5, subdivision (b).
D. Joint Guilty Plea
On May 7, 2007, defendant entered a joint guilty plea in all three cases. In case No. 199195, he pleaded guilty to felony possession of cocaine base for sale. In case No. 200070, he pleaded guilty to another felony count of possession of cocaine base for sale, and a misdemeanor count of driving a motor vehicle with a suspended license. In case No. 201113, he pleaded guilty to the felony count of possession of MDMA for sale.
Defense counsel informed the court that he had advised defendant of his Boykin-Tahl rights, and defendant agreed to waive them. Defense counsel also stated he had advised defendant of the elements of the charges, the possible defenses, the maximum punishment, and the parole consequences of the plea.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Although defense counsel initially misstated the maximum punishment for the Health and Safety Code section 11378 violation, the court corrected him.
Although there was some debate as to how the term should be calculated, it was agreed that the court would impose a prison sentence of five years, but stay execution of sentence and place defendant under supervised probation for three years, on condition that he serve 90 days in jail. Defense counsel advised defendant he would be subject to a warrantless search, required to register as a drug offender, and to submit to drug testing. Defense counsel also advised defendant he would be required to pay a fine of $500, a $200 fine to the victim indemnity fund, a $50 lab fee, a $20 court security fee, and a stayed $200 fine pursuant to Penal Code section 1202.45. He further advised defendant he would be liable for up to $50 a month for probation costs, a one time fee of $150 for preparation of a presentence report, and a booking fee not to exceed $125.
At the outset of the sentencing hearing, the court referred to the prior debate at the change of plea hearing on how to reach a five-year prison term. It informed the parties, “for the court’s purposes and recordkeeping” the method using consecutive sentences would not work. It asked if the parties had agreed on an alternate method, and defense counsel informed the court that they had. He stated that defendant agreed, in case No. 199195, to waive his right to a jury trial on aggravating sentencing factors, and that the court could impose the upper term of five years. He further agreed that, in case No. 200070, the court would impose a concurrent midterm of four years, and a concurrent midterm of the two years in case No. 201113. Execution of sentence would be stayed. The court advised defendant he had a right to a jury trial on aggravating sentencing factors, and obtained his waiver of that right, and acknowledgment that he understood and agreed to the terms.
The court sentenced defendant in accordance with the agreed terms.
E. Notices of Appeal
Defendant filed two notices of appeal in case No. 199195, on September 17, 2007 and on September 26, 2007. He also filed two notices of appeal in case No. 200070, and a notice of appeal in case No. 201113. He did not request or obtain a certificate of probable cause.
The record includes some postjudgment proceedings that occurred after the notices of appeal from the judgment were filed, and are not reviewable in this appeal from the judgment. These proceedings include defendants postjudgment motion to withdraw his guilty plea filed on November 9, 2007. The motion to withdraw the guilty plea was based upon defendant’s declaration that he was intoxicated at the time of the plea and unaware that the terms of the plea included a stayed prison sentence until the prosecutor referred to it in a motion to revoke probation. The court denied the motion to withdraw the plea and the motion to revoke probation.
II. ANALYSIS
By pleading guilty, defendant admitted the sufficiency of the evidence, and may not raise any issue that challenges his guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Since he did not seek a certificate of probable cause, he may not challenge the validity of the plea. The only issues he can raise on appeal are issues relating to denial of a motion to suppress or sentencing issues arising after the plea was entered.
Although defendant filed a motion to suppress in case No. 200070, he entered his guilty plea before the court ruled on it. Therefore, there are no arguable issues with respect to the motion to suppress that could result in reversal or modification of the judgment if resolved in defendant’s favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.)
We have reviewed the transcript of the change of plea hearing and the change of plea form, and conclude defendant was fully advised by the court and counsel of the constitutional rights he would be waiving and the direct consequences of his plea. Defendant expressly waived his constitutional rights and knowingly and voluntarily pleaded no contest.
We find no sentencing errors. Despite some initial confusion regarding how the sentence should be calculated, the parties ultimately stated their agreement on the record that the court would impose the aggravated five-year term in case No. 199195, and the sentences in the other two cases would run concurrently. When the court learned the parties had agreed that the five-year sentence would be based upon imposition of the aggravated term, the court advised defendant that he had a right to a jury trial on the aggravating factors, and obtained his personal waiver of that right. The five-year prison sentence the court imposed was consistent with these terms and, as agreed, the court stayed execution of the prison sentence and placed defendant on probation. The fees and penalties and other terms were also consistent with the advice defendant received at the change of plea hearing.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On December 7, 2007, the prosecutor filed another motion to revoke probation. On February 1, 2008, defendant admitted a probation violation, and the court reinstated probation but modified the probation conditions. Neither an order denying a postjudgment motion to withdraw a plea nor an order modifying probation are reviewable on appeal from the judgment but may be separately appealable. (See Pen. Code, § 1237, subd. (b); People v. Hall (1952) 115 Cal.App.2d 144, 148 [order denying postjudgment motion to withdraw guilty plea is an appealable postjudgment order]; People v. Zimmerman (1979) 100 Cal.App.3d 673, 674, fn. [“An order modifying probation is appealable under Penal Code section 1237, subdivision 2 as an order made after judgment which affects the substantial rights of the party”].)