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People v. Zamora

California Court of Appeals, Second District, Eighth Division
Apr 22, 2009
No. B212175 (Cal. Ct. App. Apr. 22, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. GA070021, Teri Schwartz, Judge.

Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


BIGELOW, J.

Billie Joe Zamora pled no contest to one count of possession of cocaine (count 1) and one count of possession of a device for smoking a controlled substance (count 2), and admitted that he had a prior conviction for grand theft which had been alleged to qualify as both a prior “strike” and as a prior conviction with a prison term. The trial court sentenced Zamora to state prison for a total term of five years as follows: the mid-term of two years on count 1, doubled to four years for his prior strike, plus one year for his prior conviction with a prison term. The court sentenced Zamora to serve 61 days in county jail on count 2, with credit for 61 days already served. We affirm, with an observation that any challenges which Zamora may have to the doubling of his sentence based upon the prior strike can be raised by him, if meritorious, via petition for habeas corpus.

FACTS

On June 13, 2007, police found.1 of a gram of rock cocaine and a glass pipe in Zamora’s possession during a traffic stop. On December 12, 2007, the People filed an Information charging Zamora with possession of cocaine (count 1) and possession of a device for smoking a controlled substance (count 2), with allegations that he had a prior conviction for grand theft under Penal Code section 487, subdivision (d), which qualified as a both a prior “strike” and as a prior serious felony conviction.

On May 6, 2008, the People filed an Amended Information charging Zamora with possession of cocaine (count 1) and possession of a device for smoking a controlled substance (count 2), with allegations that had a prior conviction for grand theft under Penal Code section 487, subdivision (d), which qualified as a prior strike and as a prior conviction for which he had served a prison term.

On May 15, 2008, Zamora waived his constitutional trial rights, and pled no contest to both counts. At the same time, Zamora “admit[ted] the prior allegation alleged in the information.” The reporter’s transcript reflects that Zamora admitted them “within the meaning of Penal Code sections 1170.12, (a) through (d), [and] 667 (b) through (i), that [he was] previously convicted of a serious or violent felony pursuant to the strike law, case [number] KA063904, a violation of Penal Code section 487 (d), which is grand theft of a firearm, occurring on or about November 19, 2003....”

Over the objection of the prosecutor, the trial court then advised Zamora that he would be released on his own recognizance (OR), with the understanding that, if he failed to appear for sentencing on June 17, 2008, he would be sentenced to seven years in state prison, comprised of a high term of three years for his cocaine conviction, doubled for his prior strike. Zamora agreed to these terms for his OR release.

On June 17, 2008, Zamora failed to appear for the scheduled sentencing hearing, and the trial court issued a bench warrant. On a date not readily ascertainable from the record, Zamora was taken into custody.

On September 16, 2008, the sentencing hearing went forward. At the outset of the hearing, the trial court addressed whether to impose the seven year term discussed at the time Zamora was released on his own recognizance. After hearing Zamora’s explanation for his failure to appear on June 17th, and after expressing its own concerns that it had not “necessarily determine[d]” at the plea hearing that the facts of Zamora’s case supported the high term (notwithstanding Zamora’s agreement to a seven year term in exchange for an OR release), the court decided not to impose the seven year term. The court then imposed sentence during the course of the following exchange:

“[THE COURT]: I still have to make findings, though. I can use the fact that he consented to it, yes, as a factor, and that factor alone, in selecting the high term. But in all candor, given the nature of the prior as I recall it and the present case, I feel that mid term plus one is probably right on. He’s not getting any benefit of any deal at this point. But I’m not slamming him with the maximum even though he consented to it.

“I’m saying that I can justify the maximum, but I still have to abide by the court rules. And I reviewed this, given the strike prior, and I had forgotten that this was an unusual prior. It wasn’t your ordinary serious or violent felony. It was a grand theft of a firearm. [¶] So I feel more comfortable, to be quite candid, with the five years because that’s a presumptive mid term plus one. And if he waives any objection to the plus one based on the same strike, I’m comfortable with it. [¶] Do you want to do that, Mr. Zamora?

“[ZAMORA]: May I address the court?

[THE COURT]: Well, I would quit while you are ahead. I’m going to give you five years. If you want the seven, I can do that, too. But I need you to agree that the plus one can be added on to the doubled sentence even if it involves the same conviction. (Discussion off the record).

“[THE COURT]: All right. Mr. Zamora.

“[ZAMORA]: Okay. I’ll take it. Sorry about that.

“[THE COURT]: Mr. Zamora, the People are asking for the seven. And I could just justify very easily the seven. So I’m trying to give you a break here.

“[ZAMORA]: Okay, I’m sorry, your honor.

“[THE COURT]: I really am.

“[ZAMORA]: I’m sorry.

“[THE COURT]: But I need you to agree because I’m adding a one-year prior to a sentencing that I really can’t add the one-year prior because it is the same strike. Now you consented to the seven years, which means if I give you the seven years, I don’t need you to consent any further. But since I’m giving you the five years, I would like you to agree to waive any 654 objection on that so the record is clean. [¶] [To defense counsel] Mr. Requejo, do you want to talk to him about that? (Discussion off the record.)

“[ZAMORA]: Yes, Ma’am.

“[THE COURT]: Do you want to waive it?

“[ZAMORA]: Yes.

“[THE COURT]: All right. Counsel join?

“[DEFENSE COUNSEL]: Counsel joins.

“[THE COURT]: Waive arraignment for judgment; no legal cause?

“[DEFENSE COUNSEL] No legal cause.

“[THE COURT]: Is the matter submitted by both sides?

“[DEFENSE COUNSEL]: Submit.

“[THE PROSECUTOR]: Submitted.

“[THE COURT]: All right. Presumptive mid term is the appropriate sentence. This did revert to an open plea – or it was an open plea with an agreement. The defendant failed to abide by his terms of the agreement. So it’s two years doubled on count 1, plus one for the one-year prior, that’s five years in state prison.....”

DISCUSSION

Zamora filed a timely appeal, and we appointed counsel to represent him on his appeal. On February 27, 2009, Zamora’s appointed counsel filed an opening brief which raised no issues. On the same day, we notified Zamora by letter that he could submit, within 30 days, any ground of appeal, argument or contention which he wished us to consider. On March 20, 2009, Zamora filed a typed brief challenging his sentence by way of a claim for ineffective assistance of counsel.

Zamora contends he has discovered “that he in fact never had a ‘prior strike’ and that he should never have admitted that he had one ‘prior strike.’ ” The result, he says, is that his sentence is “out of line... because he’s serving his sentence at 80% versus 50%, and it’s a longer sentence as well, by doubling the mid-term of 2 years to 4 years....” Zamora’s arguments have not persuaded us that grounds exist on appeal for a challenge to his sentence.

Penal Code sections 667, subdivision (d), and 1170.12, subdivision (b), define a prior strike by incorporating the definition of a serious felony which is set forth in Penal Code section 1192.7, subdivision (c). The later section and subdivision define a strike nee serious felony to include “... (26) grand theft involving a firearm....”

The Information filed in Zamora’s current case alleged that he had been convicted in a prior case of a “Charge Code/Statute... PC 487(d).” Under Penal Code section 487, subdivisions (d)(1) and (d)(2), a grand theft is committed when the property taken is “[a]n automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow or pig,” or “[a] firearm.” At the plea hearing and again at the sentencing hearing, the trial court expressly referred to Zamora’s prior conviction under Penal Code section 487, subdivision (d), as a “grand theft of a firearm.” And, for his part, Zamora did not disabuse the trial court of its understanding. Although it is not altogether clear to us where the trial court acquired its information about Zamora’s prior conviction, we presume that its understanding was correct because we see no affirmative indication in the record to show differently. To the extent Zamora is suggesting he may have been convicted of a grand theft of some item other than a firearm, for example, an automobile or a horse, his claim of error cannot be addressed in the context of his appeal because it relies on matters outside the appellate record. In other words, Zamora’s claim, if it is cognizable at all, must be pursued by way of another procedural avenue.

We have otherwise independently reviewed the record on appeal, and are satisfied that Zamora’s appointed counsel has fulfilled his duty, and that no arguable issues exist in connection with the trial court’s imposition of sentence. (See People v. Wende (1979) 25 Cal.3d 436; and see also People v. Kelly (2006) 40 Cal.4th 106.)

DISPOSITION

The judgment is affirmed.

We concur: RUBIN, Acting P. J. BAUER, J.

Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Zamora

California Court of Appeals, Second District, Eighth Division
Apr 22, 2009
No. B212175 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Zamora

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BILLIE JOE ZAMORA, Defendant and…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Apr 22, 2009

Citations

No. B212175 (Cal. Ct. App. Apr. 22, 2009)