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People v. Hodges

June 9, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EDDIE ALLEN HODGES, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Shasta County, Anthony A. Anderson, Judge. Dismissed. (Super. Ct. No. 06F8882).

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PUBLICATION

Defendant Eddie Allen Hodges appeals a conviction based on his guilty plea to failure to register as a sex offender (Pen. Code, § 290)*fn1 and his admission of a prior serious felony conviction (§ 1170.12). Although defendant failed to obtain a certificate of probable cause, he nonetheless challenges the propriety of a sentence enhancement for his prior serious felony conviction. He also asserts that his mental incompetence at the time of the plea requires that it be set aside. Correctly anticipating that the lack of a certificate of probable cause imposes a procedural bar, defendant contends that his federal due process and equal protection rights are violated by section 1237.5*fn2 and California Rules of Court, rule 8.304(b),*fn3 which require a certificate before a defendant who pled guilty or no contest may appeal issues other than denial of a motion to suppress evidence or post-plea errors that do not attack the validity of the plea.

We conclude that defendant‟s failure to obtain a certificate of probable cause bars the appeal based on his first two arguments, and that he demonstrates no constitutional defect in the certificate requirement. As a consequence, we shall dismiss the appeal.

BACKGROUND

We dispense with a recitation of the facts surrounding the underlying offense because defendant‟s arguments do not require their consideration. Thus, we turn to the pertinent procedural history of the case.

In April 2007, the Shasta County District Attorney filed two felony cases against defendant. The information in case number 05F5951 charged defendant with two counts of failing to register as a sex offender (§ 290), and alleged that he had four prior serious felony convictions (§ 1170.12) as well as having served a prior prison term. (§ 667.5, subd. (b)). The information in case number 06F8882 charged defendant with a single count of failure to register as a sex offender (§ 290), and alleged one prior serious felony conviction (§ 1170.12) as well as two prior prison terms (§ 667.5, subd. (b)).

The superior court appointed the public defender to represent defendant in both cases.

Over the next five months, defendant four times moved for the appointment of new counsel under People v. Marsden (1970) 2 Cal.3d 118. The trial court denied the first three Marsden motions, and defendant agreed to withdraw his fourth in order to allow his new attorney to become familiar with the case.

In December 2007, the district attorney filed a consolidated information charging defendant with four counts of failing to register as a sex offender (§ 290). Under count one, the information alleged that defendant had three prior serious felony convictions (§ 1170.12), and had served two prior prison terms (§ 667.5, subd. (b)).

In March 2008, defendant filed a handwritten motion for the appointment of a psychiatrist. On April 8, 2008, defendant appeared in court with counsel. The minute order indicates that trial counsel would address defendant‟s motion three days later "if necessary." At the next court appearance, defendant did not renew his motion but instead accepted a negotiated plea agreement with a stipulated six-year prison term.

Defendant filled out a plea agreement form, indicating that he understood the deal to be: "GUILTY CT 3 PC 290(A)(1) Felony [¶] ADMIT 1 STRIKE (Suffered the conviction) [¶] DISMISS OTHER COUNT AND SPECIAL ALLEGATION [¶] NO PROBATION REPORT STIP 3yr x 2 = 6yr SP [¶] Sentence Continued 30 days."*fn4

Defendant also expressly waived any right to appeal his sentence or the denial of his motions.

Shortly before sentencing, the trial court granted the district attorney‟s motion to amend the information to allege that the sentence enhancement applied to the substantive count to which defendant admitted. Trial counsel expressed no objection to the amendment when the court asked for comment.

On May 23, 2008, the trial court sentenced defendant to the stipulated six-year prison term. On July 2, 2008, defendant in propria persona timely filed a notice of appeal along with a request for a certificate of probable cause on the issue of presentence custody credits.*fn5 On August 1, 2008, defendant filed a second, late notice of appeal with a request for a certificate of probable cause in order to raise multiple issues, including mental competency. Defendant‟s second notice of appeal indicates that he filed it late because his correctional facility had "been in lockdown" so that he lacked prison library access.

The record does not contain the trial court‟s ruling on the first request for a certificate of probable cause. The trial court‟s ruling on the second request indicates that the denial was based on lack of arguability rather than untimeliness in filing.

This court granted defendant‟s request for the appointment of appellate counsel based on indigency. As is our practice, we granted counsel authority to represent defendant on direct appeal to this court as well as authority to prepare and file a petition for review in the California Supreme Court. The issues have been briefed by appellate counsel, and we proceed to address them.

DISCUSSION

I. Lack of Arraignment on the Amended Information

Defendant urges us to set aside his sentence because he was not arraigned on the sentence enhancement allegation when the trial court amended the information to conform to his plea. Defendant‟s argument represents an attack on the validity of the plea even though the amendment occurred after the plea. Thus, defendant‟s argument ...


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