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The People v. Ernest Joe Young

April 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ERNEST JOE YOUNG, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F08778)

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

P. v. Young

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. After counsel filed an opening brief raising no issues and requesting this court review the record for arguable issues, defendant filed a supplemental brief which is vague but appears to request this court review his plea and the denial of his pre-plea Marsden*fn1 motions. We address these issues, in addition to undertaking a review of the record as required by Wende, modify custody credits, and otherwise affirm the judgment.

During the early morning hours of November 25, 2009, an alarm was activated in a bait car parked and monitored by the Sacramento Vehicle Crimes Unit. Officers saw the car was being followed by a gray van. Co-defendant Ricardo Gasaway, who was driving the bait car, was arrested and informed officers that defendant had given him the key to the car and asked him to move the car around the corner for him. Defendant, who had been driving the gray van following the bait car, was taken into custody. Defendant's blood alcohol content was .31 percent.

Defendant was charged with vehicle theft, driving under the influence of alcohol and with a blood alcohol level in excess of .08 percent, and driving while his license was suspended for driving under the influence. It was also alleged that he had two prior convictions for driving under the influence, and a separate petition for violation of probation in one of those cases was filed.

After the court denied three Marsden motions, defendant entered into a negotiated plea wherein he pled no contest to vehicle theft and driving with a blood alcohol level in excess of .08 percent, having been previously convicted of driving under the influence. The remaining allegations and the petition for violation of probation in the separate case were dismissed.

Sentencing took place on July 1, 2010. The trial court sentenced defendant to the upper term of three years for driving with a blood alcohol level in excess of .08 percent and a concurrent two years for vehicle theft. In addition to various fines and fees, defendant was ordered to pay a restitution fine in the amount of $1,015. He was awarded 219 actual days and 218 conduct days, for a total of 437 days of custody credit.

Defendant appeals and seeks this court's review of his Marsden motions and his plea. These matters are not reviewable in this appeal.

To the extent defendant is alleging the trial court erred by denying his pre-plea Marsden motions, he waived any such error by pleading no contest. In People v. Lobaugh (1987) 188 Cal.App.3d 780, 786, we held that after the entry of a plea of guilty or no contest, a claim of Marsden error is waived, except where a defendant asserts that the plea was not informed and voluntary or was the product of inappropriate advice from counsel.

To the extent defendant asserts that the plea was not informed and voluntary or was the product of coercion or inappropriate advice from counsel, either as established during one of his Marsden hearings or otherwise, his contentions are non-cognizable, since his request for a certificate of probable cause was denied. (Pen. Code, § 1237.5.)

After a defendant has entered a plea of guilty or no contest, he may appeal from the ensuing judgment of conviction only if he has obtained a certificate of probable cause for the appeal, or if he seeks to raise one of the two types of issues for which a certificate is not needed: search and seizure issues, or "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.]" (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.) "If the challenge is in substance an attack on the ...


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