People v. Potts CA2/1

Filed 7/13/21 P. v. Potts CA2/1
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REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B307014
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA460962)
v.
TIMOTHY POTTS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Renee F. Korn, Judge. Dismissed.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and J. Michael Lehmann, Deputy
Attorney General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Timothy Potts appeals the trial
court’s imposition of sentence at a resentencing hearing following
his plea of no contest to a single count of custodial possession of a
weapon. (Pen. Code, § 4502, subd. (a).)1
In his opening brief, Potts argued that he was not required
to obtain a certificate of probable cause because his contentions
on appeal pertained to the sentence imposed and did not
challenge the validity of the plea. The People disagreed and
moved to dismiss the case. Based on Potts’s representation of the
substance of his contentions in his opposition, our presiding
justice denied the People’s motion to dismiss.
Upon further review, we conclude that neither Potts’s
argument with respect to the necessity of a certificate of probable
cause in the opening brief nor his opposition to the motion to
dismiss accurately reflects his substantive arguments. We
conclude that Potts’s arguments on appeal attack the validity of
the plea. Because Potts did not obtain a certificate of probable
cause, we dismiss the case.
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
PROCEDURAL HISTORY
Potts was charged with two counts of custodial possession
of a weapon (§ 4502, subd. (a)), which occurred on August 23,
2017 (count 1), and October 13, 2017 (count 2), in Superior Court
of Los Angeles County Case No. BA460962. It was further
alleged that Potts had been convicted of eight prior felonies.
Potts was separately charged with a third count of
custodial possession of a weapon (§ 4502, subd. (a)), occurring on
December 25, 2017 (count 1), in Superior Court of Los Angeles
County Case No. BA466704. The information alleged that Potts
had been convicted of ten prior felonies, including three serious
and/or violent felonies within the meaning of the three strikes
law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
Potts accumulated these custodial charges while he was
awaiting trial in Superior Court of Los Angeles County Case No.
YA094029 (the Inglewood case),2 in which he was charged with
inflicting corporal injury upon a person with whom he had a
dating relationship, following a prior domestic violence conviction
(§ 273.5, subd. (f)(2) [count 1]), criminal threats (§ 422, subd. (a)
[count 2]); dissuading a witness from reporting a crime (§ 136.1,
subd. (b)(1) [count 3]); and six counts of attempting to dissuade a
witness (§ 136.1, subd. (a)(2) [counts 4–9]). In the Inglewood
case, it was alleged that Potts had suffered two prior strike
convictions within the meaning of the three strikes law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)) and two serious felony
2 We take judicial notice of Division Two of the Second
District of the Court of Appeal’s unpublished opinion in People v.
Potts (May 3, 2019, B290757), in which Potts appealed the
Inglewood case.
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convictions (§ 667, subd. (a)(1)), and had served five prior prison
terms (§ 667.5, subd. (b)).
Case No. BA460962 and Case No. BA466704 were
consolidated under Case No. BA460962, charging a total of three
counts of custodial possession of a weapon. Potts then pleaded no
contest to two of the three section 4502, subdivision (a) charges.
The prosecution committed in its plea offer to one of two possible
resolutions, depending on the sentence Potts ultimately received
in the then pending Inglewood case. If Potts was sentenced to
more than 20 years in the Inglewood case, the prosecution in this
case agreed to dismiss two of the three custodial possession of a
weapon charges. Potts would receive a term of two years for a
single section 4502, subdivision (a) conviction, doubled to four
years pursuant to the three strikes law, to be served consecutive
to the Inglewood sentence. If Potts was sentenced to a term of
less than 20 years in the Inglewood case, the prosecution would
dismiss only one of the custodial possession of a weapon charges,
and Potts would be sentenced to two consecutive sentences of
one-third of the mid-term sentence for a violation of section 4502,
subdivision (a) (i.e., two years).
In either case, the trial court would hold a Romero3 hearing
at the time of sentencing. The trial court agreed that in the event
that Potts’s sentence was over 20 years in the Inglewood case, it
would exercise its discretion to strike his prior strike convictions
in Case No. BA460962, and impose the low term of two years, to
be served consecutively to the sentence in the Inglewood case.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497[trial court has discretion to strike an allegation or vacate a
finding under the three strikes law in the interests of justice].
4
In the Inglewood case, the jury found Potts guilty of
inflicting corporal injury upon a person with whom he had a
dating relationship, with a prior domestic violence conviction
(§ 273.5, subd. (f)(2) [count 1]), and six counts of attempting to
dissuade a witness (§ 136.1, subd. (a)(2) [counts 4–9]). He was
acquitted in counts 2 and 3. In a bifurcated proceeding, the court
found the priors allegations to be true. The court struck one of
Potts’s prior convictions with respect to counts 5 through 9, but
declined to strike any prior strikes with respect to count 4. The
court in the Inglewood case sentenced Potts to 25 years to life in
count 4, plus two 5-year terms pursuant to section 667,
subdivision (a)(1); two years in count 1; and five terms of 16
months each in counts 5 through 9.
On June 15, 2018, the trial court sentenced Potts in Case
No. BA460962 to the low term of two years, doubled pursuant to
the three strikes law to four years to be served “concurrent to any
other time”.
On February 7, 2020, the Department of Corrections and
Rehabilitation filed a letter informing the court that section 4502
required that the sentence in Case No. BA460962 be served
consecutively to the sentence in the Inglewood case, not
concurrently.
On August 4, 2020, Case No. BA460962 was called for
resentencing. The resentencing court struck the strike
convictions, and imposed a total sentence of two years rather
than four years, based upon its understanding that the judge who
accepted Potts’s plea had agreed to strike any strike convictions
and sentence him to a total term of two years. The two-year term
was ordered to be served consecutively to the term in the
Inglewood case.
5
Potts appealed from the judgment following resentencing,
without first obtaining a certificate of probable cause. In his
opening brief, he argued that a certificate of probable cause was
not required.
The People moved to dismiss the case, and Potts opposed
the dismissal. In an order dated February 8, 2021, our presiding
justice summarily denied the People’s motion.
DISCUSSION
“Under section 1237.5 and rule 31(d) of the California Rules
of Court, no appeal may be taken by a defendant from a judgment
of conviction upon a plea of guilty or nolo contendere except
where a certificate of probable cause is filed-unless the appeal
deals with search and seizure issues, or is based on grounds
‘occurring after entry of the plea which do not challenge its
validity.’ (Rule 31(d).)” (People v. Young (2000) 77 Cal.App.4th
827, 829, fn. omitted.) Our Supreme Court has held that “a
challenge to a negotiated sentence imposed as part of a plea
bargain is properly viewed as a challenge to the validity of the
plea itself. . . . [It is] incumbent upon defendant to seek and
obtain a probable cause certificate in order to attack the sentence
on appeal. (§ 1237.5.)” (People v. Panizzon (1996) 13 Cal.4th 68,
79.)
“The requirements of section 1237.5 and the first
paragraph of rule 31(d) must be strictly applied. (People v.
Mendez[ (1999)] 19 Cal.4th [1084,] 1098-1099.) The Supreme
Court has disapproved the practice of applying the rule loosely in
order to reach issues whose consideration would otherwise be
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precluded. (Ibid.)” (People v. Cole (2001) 88 Cal.App.4th 850,
860, fn. omitted (Cole).)
“A strict application of section 1237.5 works no undue
hardship on defendants with potentially meritorious appeals.
The showing required to obtain a certificate is not stringent.
Rather, the test applied by the trial court is simply ‘whether the
appeal is clearly frivolous and vexatious or whether it involves an
honest difference of opinion.’ [Citation.] Moreover, a defendant
who files a sworn statement of appealable grounds as required by
section 1237.5, but fails to persuade the trial court to issue a
probable cause certificate, has the remedy of filing a timely
petition for a writ of mandate. [Citations.] Thus, if he complies
with section 1237.5, a defendant has ample opportunity to perfect
his appeal. Since a guilty or no contest plea to a felony charge
‘admits all matters essential to the conviction’ [citations], it is not
unreasonable to insist on such compliance in order to identify
frivolous or vexatious appeals. [Citations.]” (Cole, supra, 88
Cal.App.4th at p. 860, fn. 3.)
Analysis
In his opposition to the People’s motion to dismiss and in
the opening brief, Potts argued that it was not necessary for him
to obtain a certificate of probable cause because his challenge
concerned the sentence and did not go to the validity of the plea.
Potts cited to the italicized portion of the following statement by
the prosecutor at the plea colloquy: “if [the sentence in the
Inglewood case is] less than 20 [years], then he’ll remain
convicted on two charges [for violation of section 4502,
subdivision (a)]. And by law they’re consecutive, one third the
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midterm.”4 Potts suggested that, in light of this statement, he
“could readily have believed that the sentence would be a
consecutive sentence of one-third of the mid-term, i.e., 1 year.”5
Potts asserted that because the trial court did not impose the
4 Section 1170.1, subdivision (a), provides in pertinent part:
“Except as otherwise provided by law, and subject to Section 654,
when any person is convicted of two or more felonies, whether in
the same proceeding or court or in different proceedings or courts,
and whether by judgment rendered by the same or by a different
court, and a consecutive term of imprisonment is imposed under
Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and
Section 12022.1. The principal term shall consist of the greatest
term of imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific enhancements.
The subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of
imprisonment is imposed, and shall include one-third of the term
imposed for any specific enhancements applicable to those
subordinate offenses.”
5Although it does not affect our disposition, we note that
the prosecutor’s statement was dependent upon Potts having
been sentenced to less than 20 years in the Inglewood case, an
eventuality that did not occur. It is abundantly clear from the
transcripts that Potts understood he was agreeing to a specific
sentence of two years in prison, if, as was the case, he was
sentenced to more than 20 years in prison in the Inglewood case.
And, in fact, Potts does not dispute that was the agreement in his
substantive arguments in the opening brief.
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agreed-upon sentence, he was not challenging the plea, but
instead contesting the sentence imposed—a challenge that does
not require a certificate of probable cause. Based on this
representation, our presiding justice denied the People’s motion
to dismiss.
This argument does not faithfully represent Potts’s
contentions on the merits. In the opening brief, Potts argues that
the agreed-upon sentence was unauthorized pursuant to the
relevant sentencing statutes: “[I]gnoring the law, and the ‘one-
third mid term’ statement, the parties agreed that, if [Potts]
received more than 20 years in the Inglewood case, he would
receive a consecutive sentence of 2 years, the low term on count
1.” Potts further argues on the merits that the trial court was
required by statute to impose the term as part of an aggregate
sentence with the Inglewood case—something that the parties
never agreed to in the plea colloquy.
These two arguments that Potts now makes are not
arguments that the trial court failed to sentence him consistent
with his plea agreement; rather, they are in substance arguments
that the plea agreement the parties reached is invalid because
the statutory provisions raised, if implemented, would require a
different calculation of length of his imprisonment. Potts agreed
to a specific term of two years in state prison, to be served
consecutively to the sentence in the Inglewood case. That is the
sentence that the trial court imposed. If Potts had concerns
about how the additional two years was structured, or believed
that the additional time to be imposed beyond his sentence in the
Inglewood case contravened statutory mandates, these were
issues that he had the opportunity to raise before the entry of his
plea. The issues he seeks to raise now go to the validity of the
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plea agreement itself. Because Potts did not obtain a certificate
of probable cause to raise these challenges on appeal, Potts may
not now argue that the agreement should have been for a term of
one year as part of an aggregate sentence with the Inglewood
case.
DISPOSITION
The case is dismissed.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIM, J.
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