Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR494-159
Swager, J.
Defendant appeals from a judgment following his plea of guilty and imposition of sentence. 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; see Smith v. Robbins (2000) 528 U.S. 259.) 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
Since the present appeal is taken from a no contest plea, we need only summarily recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the reporter’s transcript of the preliminary hearing.
John Packnett left the home of a friend in the L Section of Rohnert Park on the evening of August 23, 2006, to meet another friend, Jason Hopkins, on Lancaster Street. He encountered Randy Alonzo in the driveway of the front yard. Alonzo told Packnett to give him a cell phone he was carrying. Packnett walked away, but Alonzo followed him down the street. Packnett noticed that as Alonzo followed him he was talking on a cell phone.
When Packnett reached Lancaster Street he observed Hopkins drive up in his Mitsubishi Galant, make a U-turn, and stop the car. Alonzo then approached the open passenger side front window and shouted something to Hopkins just before Packnett entered the vehicle on the passenger side. Without invitation, Alonzo also entered the car. Neither Packnett nor Hopkins were acquainted with Alonzo.
After Hopkins “put the car in gear,” Alonzo directed him to “drive to L park.” He also told Packnett “to get out” and “go to L park with him.” After traveling a very short distance, Hopkins stopped the car and “pulled over to the side of the road.” Both he and Alonzo left the vehicle; Packnett stayed inside. Hopkins and Alonzo began to argue just outside the driver’s side door of the car. Alonzo told Hopkins to order Packnett out of the car.
As Hopkins then turned to ask Packnett “what’s going on,” Alonzo grabbed Hopkins’s cell phone, which fell from his hand to the ground. They scuffled momentarily before Hopkins retrieved the phone. Hopkins noticed someone else “walking up the street” toward the car, but did not pay attention to him. Instead, his focus was directed at Alonzo, who ran back to the driver’s side of the car.
Packnett, still seated in the car, then saw a hand holding a knife come through the open window. He was stabbed once in the arm and three times in the upper chest before he was able to get his legs out the window and kick at the person. Packnett could not identify the person who stabbed him, but described him as a male Hispanic “older teenager,” with a tattoo of cursive writing across his neck. Packnett was positive that the assailant was not Alonzo, who was still scuffling with Hopkins on the other side of the car when the stabbing occurred.
Alonzo then got into the driver’s seat of the car and began to drive the car forward for a few seconds before he stopped. Hopkins ran to the driver’s window and tried to jump through with both of his feet. After one of his feet hit the steering wheel, Hopkins began to kick Alonzo in the head and chest. The man who stabbed Packnett then ran around the car and stabbed Hopkins three times in the side and back. Hopkins identified the person who stabbed him as defendant.
As Packnett left the car, Hopkins freed his legs and managed to kick defendant as he fell to the ground. Alonzo remained in the driver’s seat. Defendant ran around the back of the car, got into the passenger seat, and they drove away in the Galant. Hopkins and Packnett managed to walk five or six houses away and enlist a woman to call for help. They were taken to the hospital for treatment of their wounds.
Hopkins recovered his Mitsubishi Galant a week or 10 days later. The car was damaged both inside and outside. Items of personal property, including a laptop computer, software, digital cameras, stereos, and a leather jacket, were stolen from the interior and trunk of the car.
Expert opinion testimony was also presented that both defendant and Alonzo are affiliated with the Sureno criminal street gang, and the offenses were committed to “benefit the gang.”
On May 29, 2007, defendant entered a negotiated plea of no contest to two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). He also admitted associated enhancements for crimes committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The trial court thereafter imposed an aggregate state prison term of 18 years and eight months, which was the sentence stipulated in the plea agreement. The court also ordered defendant to pay a restitution fine, a parole revocation fine, a court security fee, and restitution to the victims. Defendant was granted a total of 431 days of presentence credits. Notice of appeal was timely filed, but defendant did not obtain a certificate of probable cause.
In accordance with the plea agreement, two counts of attempted murder (§§ 664, 187), one count of attempted robbery (§§ 664, 211), and participation in a criminal street gang (§ 186.22, subd. (a)) were dismissed with a Harvey waiver, as were alleged enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1).)
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 not obtained a certificate of probable cause, so he cannot challenge the validity 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. Defendant did not make a motion to suppress evidence pursuant to section 1538.5, and the record does not reveal any search and seizure issues to be considered.
There are no sentencing errors. In imposing sentence, the trial court properly considered evidence in the record, including the information in the probation report. The denial of probation was in accord with the recommendation of the probation report and thoroughly supported by the evidence. The trial court properly provided a statement of reasons – particularly the viciousness of attack – for the sentence choice to deny probation and select the middle term of imprisonment. (Rule 4.406(b); People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.) In support of the decision to impose consecutive terms for unlawful driving or taking a vehicle and the two assault offenses, the court recited that the crimes and victims were “separate,” which we find to be an adequate statement of reasons, and even if not the error was clearly harmless. (Rule 4.425; People v. Coddington (2000) 23 Cal.4th 529, 656–657; People v. Tillotson (2007) 157 Cal.App.4th 517, 545; People v. Smith (1984) 155 Cal.App.3d 539, 546.) The total term of 18 years and eight months was appropriate and in accord with the plea agreement. The court was also justified in imposing the fines, victim restitution, and the court security fee. No error in the calculation of the “updated” presentence custody credits is established.
Appellant was represented by counsel throughout the proceedings.
After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.
We concur: Stein, Acting P. J., Margulies, J.