People v. White CA2/4

Filed 3/25/14 P. v. White CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B248505
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA116183)
v.
BOBBY JAMES WHITE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lori Ann Fournier, Judge. Dismissed in part; affirmed in part.
California Appellate Project, Jonathan B. Steiner and Richard B. Lennon,
under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Bobby James White appeals from the judgment entered following his
conviction pursuant to a no contest plea to two counts of robbery. (Pen. Code,
§ 211.)1 Appellant also admitted to a gang allegation (§ 186.22, subd. (b)(1)(C))
and an allegation of personal use of a firearm (§ 12022.5, subd. (a)). Appellant
challenges his 20-year sentence, arguing that the 10-year enhancement that was
imposed pursuant to the gang allegation was not supported by the evidence.
However, appellant did not obtain a certificate of probable cause and therefore
cannot challenge his sentence, which was part of the negotiated plea agreement.
(See § 1237.5;2 People v. Johnson (2009) 47 Cal. 4th 668, 678 (Johnson) [“Even
when a defendant purports to challenge only the sentence imposed, a certificate of
probable cause is required if the challenge goes to an aspect of the sentence to
which the defendant agreed as an integral part of a plea agreement. [Citations.]”];
People v. Panizzon (1996) 13 Cal. 4th 68, 78 [holding that the certificate
requirement applies where the sentence was “part and parcel of the plea agreement
he negotiated with the People”].) We therefore dismiss the appeal as to his
challenge to his sentence and affirm in all other respects.
1
All further statutory references are to the Penal Code unless otherwise specified.
2
Section 1237.5 provides as follows: “No appeal shall be taken by the defendant
from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation
of probation following an admission of violation, except where both of the following are
met: [¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. [¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal with the clerk of the
court.”
2
FACTUAL AND PROCEDURAL BACKGROUND3
On July 23, 2010, around 2:00 p.m., Hema Vijaykumar was working at the
Highglow jewelry store in the City of Artesia. As she was exiting the store for a
lunch break, appellant and three other men got out of a car, pointed a gun at her,
motioned her back into the store, entered the store, and began taking jewelry.
A passing driver saw the men get out of the car with guns before they
entered the jewelry store. She called the police and later identified the men to the
police.
After appellant and the other men left the jewelry store, law enforcement
officers pursued their car and placed them under arrest after their car crashed. The
officers recovered jewelry from the car, and the victim identified the jewelry.
Detective Anthony Valenzuela testified that the video from the jewelry store
showed one of the suspects wearing a black hat with an emblem on it. A black
Toronto Bluejays hat was recovered at the car. Detective Valenzuela testified that
a hat like that is “specific to the gang known as the PJ Watts Crips.”
Detective Francis Coughlin of the gang suppression unit testified that the PJ
Watts Crips affiliated themselves with the Toronto Bluejays. Detective Coughlin
opined that appellant was a member of the gang based on field identification cards
indicating that White had a gang moniker and was associated with gang members
in 2007 and 2008. Detective Coughlin further opined that the crime was
committed for the benefit of a gang.
Appellant and three codefendants were charged in an amended information
with five counts of second degree robbery. The information further alleged that a
principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)) and was armed
3
The facts are taken from the preliminary hearing transcript.
3
with a firearm (§ 12022, subd. (a)(1)), that the offense was committed for the
benefit of a gang (§ 186.22, subd. (b)(1)(C)), and that appellant personally used a
firearm (§ 12022.5, subd. (a)). Appellant pled not guilty to all the charges and
denied the allegations.
Appellant made a Marsden motion, seeking to replace his counsel,
complaining that his attorney did not visit him or answer his telephone calls.
(People v. Marsden (1970) 2 Cal. 3d 118.) The court explained to appellant that
defense counsel was very experienced, but that the evidence against him was very
strong, and the plea offer from the People was good in light of the 50-year
exposure he faced. The court thus denied the Marsden motion.
Appellant entered into a plea agreement pursuant to which he pled no
contest to two of the robbery counts and admitted to the gang allegation (§ 186.22,
subd. (b)(1)(C)) and the allegation that he personally used a firearm (§ 12022.5,
subd. (a)). The agreement provided for a term of 20 years in state prison.
The court warned appellant of the consequences of the plea and advised him
of his rights to a jury trial, to confrontation, and against self-incrimination.
Appellant waived his rights, withdrew his not guilty pleas, entered no contest pleas
to two counts of second degree robbery, and admitted the firearm and gang
allegations. The court found that appellant “expressly, knowingly, understandingly
and intelligently” waived his constitutional rights and that the plea was free and
voluntary, and therefore accepted the no contest plea and the admission to the
allegations.
The court sentenced appellant to the upper term of 5 years as to count 2, plus
10 years for the gang allegation and four years for the firearm allegation, and one-
third the midterm of three years as to count 3, for a total of 20 years. The
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remaining counts and allegations were dismissed pursuant to the plea agreement.
Appellant’s request for a certificate of probable cause was denied.
After review of the record, appellant’s court-appointed counsel filed an
opening brief asking this court to review the record independently pursuant to the
holding of People v. Wende (1979) 25 Cal. 3d 436, 441.
On October 17, 2013, we advised appellant that he had 30 days within which
to submit any contentions or issues that he wished us to consider. On December 4,
2013, appellant filed a supplemental brief, raising several contentions: the gang
allegation was not proven; his attorney failed to “fight” the allegation; the trial
court denied his request for new counsel; and his 20-year sentence constitutes cruel
and unusual punishment because he had no prior felony convictions and one
misdemeanor conviction.
DISCUSSION
As stated above, a certificate of probable cause is required for an appeal
challenging the validity of a plea. (People v. Brown (2010) 181 Cal. App. 4th 356,
359.) “When the issue on appeal challenges the defendant’s sentence following a
guilty plea or plea of nolo contendre, the determining factor in deciding whether
the issue arose before entry of the plea such that a certificate of probable cause is
required is whether the plea agreement specifies a particular sentence or whether it
specifies a sentence range.” (People v. Vargas (2007) 148 Cal. App. 4th 644, 651
(Vargas).)
Appellant’s challenge to the length of his sentence is based on his argument
that the gang enhancement was not proven. “The same restrictions on appellate
issues apply after a no contest plea [citations] and the admission of an
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enhancement [citation].” (People v. Voit (2011) 200 Cal. App. 4th 1353, 1364
(Voit).)4
The plea agreement here specified a particular sentence of 20 years.
(Vargas, supra, 148 Cal.App.4th at p. 651.) “[A]n agreed-upon aspect of the
sentence cannot be challenged without undermining the plea agreement itself.”
(Johnson, supra, 47 Cal.4th at p. 678.) Appellant therefore may not challenge his
sentence. The appropriate remedy accordingly is to dismiss the appeal as to his
challenge to his sentence. (§ 1237.5; People v. Mendez (1999) 19 Cal. 4th 1084,
1099 [explaining that the appellate court “generally may not proceed to the merits
of the appeal, but must order dismissal thereof” where the defendant has not
obtained a certificate of probable cause].)
Appellant argues that his attorney was ineffective for failing to adequately
“fight” the gang allegation. Appellant’s argument does not relate to “‘proceedings
held subsequent to the plea for the purpose of determining the degree of the crime
and the penalty to be imposed,’” but instead pertains to the validity of his plea.
(People v. Richardson (2007) 156 Cal. App. 4th 574, 596.) His ineffective
assistance claim accordingly cannot be raised on appeal. (See id. at pp. 596-597
4
Voit relied on People v. Lobaugh (1987) 188 Cal. App. 3d 780 (Lobaugh) to hold
that the admission of an enhancement was not cognizable on appeal after a no contest
plea. (Voit, supra, 200 Cal.App.4th at p. 1364.) Lobaugh’s analysis was criticized by the
California Supreme Court in People v. Maultsby (2012) 53 Cal. 4th 296, 302-303
(Maultsby). However, Maultsby also distinguished Lobaugh on the basis that the
defendant in Lobaugh pled guilty to the substantive charge, whereas the Maultsby
defendant was convicted by jury of the substantive offense and admitted only to an
enhancement allegation. (Id. at pp. 298, 302.) Thus, Lobaugh’s holding that a certificate
of probable cause is required to challenge an enhancement allegation where a defendant
enters a guilty or no contest plea to the substantive charge remains good law because the
guilty or no contest plea “alone triggers section 1237.5’s requirement that a defendant
obtain a certificate of probable cause.” (Id. at p. 302.)
6
[pre-plea ineffective assistance of counsel claim cannot be raised without
certificate of probable cause].)
“Under some circumstances, ineffective assistance of counsel can be a
constitutional question going to the legality of the proceedings. [Citation.]”
(People v. Marlin (2004) 124 Cal. App. 4th 559, 567.) However, even if appellant’s
claim is cognizable on appeal, our courts have “‘repeatedly emphasized that a
claim of ineffective assistance is more appropriately decided in a habeas corpus
proceeding.’ [Citations.]” (People v. Jones (2003) 30 Cal. 4th 1084, 1105.) Thus,
“‘“[if] the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation,”
the claim on appeal must be rejected.’ [Citation.]” (People v. Mendoza Tello
(1997) 15 Cal. 4th 264, 266.)
The record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged. In fact, the record indicates that defense counsel
vigorously challenged the gang allegation. Defense counsel objected to Detective
Coughlin’s reliance on statements ascribed to appellant in field identification cards,
objected to the People’s hypothetical, and cross-examined Detective Coughlin in
detail about the circumstances alleged in the field identification cards. We
therefore reject appellant’s claim of ineffective assistance.
Appellant also challenges the trial court’s denial of his Marsden motion. In
Lobaugh, supra, the court concluded that the defendant, who did not obtain a
certificate of probable cause, was precluded from raising a pre-plea Marsden issue
on appeal. (Lobaugh, supra, 188 Cal.App.3d at p. 786; People v. Lovings (2004)
118 Cal. App. 4th 1305, 1312 [finding that the appellant’s guilty plea precluded him
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from raising a pre-plea Marsden claim, despite having obtained a certificate of
probable cause].)
Even if appellant’s challenge to the denial of his Marsden motion is
cognizable on appeal, the trial court did not abuse its discretion in denying his
motion. “‘[W]hen the defendant in some manner moves to discharge his current
counsel’ [citation], . . . ‘the trial court must afford the defendant an opportunity to
express the specific reasons why he believes he is not being adequately represented
by his current counsel.’ [Citation.] After hearing from the defendant, a trial court
is within its discretion in denying the motion unless the defendant establishes
substantial impairment of his right to counsel. [Citation.] On appeal we review
the denial for an abuse of discretion. [Citation.]” (People v. Vera (2004) 122
Cal. App. 4th 970, 979.)
The trial court here afforded appellant the opportunity to express the specific
reasons he believed he was not being adequately represented. Appellant did not
establish substantial impairment of his right to counsel. The court did not abuse its
discretion in denying the Marsden motion.
The minute order and abstract of judgment differ slightly from the court’s
oral pronouncement as to the fines and fees only. The court ordered appellant “to
pay $280 to the victim restitution fund, a $40 court operations assessment fee, a
$30 criminal conviction fee, and a $10 crime prevention fee.” The court imposed
and stayed a $280 parole revocation fine.
In addition to the $280 victim restitution fine and the $280 parole revocation
fine, the minute order and abstract of judgment indicate the imposition of a $38
fine pursuant to section 1202.5, an $80 court operations assessment, and a $60
conviction assessment. The court operations assessment and criminal conviction
assessment are to be imposed per conviction. (§ 1465.8, subd. (a)(1)); Gov. Code,
8
§ 70373, subd. (a)(1)). Appellant suffered two convictions. These fees are
mandatory. (People v. Woods (2010) 191 Cal. App. 4th 269, 272.) The minute
order and abstract of judgment therefore correctly indicate a court operations
assessment fee of $80 and a criminal conviction assessment of $60.
Section 1202.5 provides, in pertinent part, that a defendant convicted under
section 211 shall pay “a fine of ten dollars ($10) in addition to any other penalty or
fine imposed.” The $10 fine is subject to additional assessments, penalties, and a
surcharge. (People v. Castellanos (2009) 175 Cal. App. 4th 1524, 1528
(Castellanos).) The minute order and abstract of judgment correctly note that the
additional charges result in a total assessment of $38.5 (See id. at pp. 1528-1530
[discussing the additional charges].)
“We realize the general rule is that the oral pronouncements of the court are
presumed correct. [Citation.] Nonetheless, under these circumstances, we will
deem the minute order and the abstract of judgment to prevail over the reporter’s
transcript. [Citations.] When the record is in conflict and cannot be harmonized,
‘“. . . that part of the record will prevail, which, because of its origin and nature or
otherwise, is entitled to greater credence . . . .”’ [Citation.]” (People v. Thompson
(2009) 180 Cal. App. 4th 974, 978.) To the extent that the reporter’s transcript
differs from the minute order and abstract of judgment, it is “of no effect.” (Ibid.)
We have examined the entire record and are satisfied that no arguable issues
exist, and that appellant has, by virtue of counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective appellate
5
One of the penalties discussed in Castellanos is a $1 deoxyribonucleic acid state-
only penalty required by Government Code section 76104.7, subdivision (a).
(Castellanos, supra, 175 Cal.App.4th at pp. 1529-1530.) Pertinent to this appeal, this
penalty was increased to $3, effective June 10, 2010. (Stats. 2009-2010, 8th Ex.Sess., ch.
3, § 1.) The total assessment therefore is $38.
9
review of the judgment entered against him in this case. (Smith v. Robbins (2000)
528 U.S. 259, 278; People v. Kelly (2006) 40 Cal. 4th 106, 112-113.)
DISPOSITION
Appellant’s challenge to his sentence, which was part of his
negotiated plea, is dismissed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
EDMON, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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