IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TONY LOW, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F00949)
The opinion of the court was delivered by: Hull , J.
P. v. Low
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
The facts are taken from the factual basis stated at the time of defendant's plea.
About 10:00 p.m. on February 3, 2010, defendant Tony Low entered a bookstore. As four store employees prepared to close the store, defendant emerged from behind a bookshelf yielding "what appeared to be a real gun." Defendant put his arm around the neck of one employee, pressed the gun against her head, and demanded money, threatening all the employees. The employees opened the store's safe and gave defendant the money inside. Defendant fled the store with $2,800.
An amended information charged defendant with four counts of second degree robbery (Pen. Code, § 211; undesignated statutory section references that follow are to the Penal Code) and alleged that he had sustained four prior felony convictions (four within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12 [1987 robbery, 1988 robbery, 1988 assault with a deadly weapon, 1992 first degree burglary] and three within the meaning of section 667, subdivision (a)). The amended information further alleged that defendant sustained a prior prison term (§ 667.5, subd. (b)) [2005 bringing drugs into jail].
Defendant entered a negotiated plea of no contest to one count of second degree robbery and admitted one strike prior [1987 robbery] and three prior serious felony convictions [1987 robbery, 1988 robbery, and 1992 first degree burglary] in exchange for a stipulated state prison sentence of 25 years, that is, the upper term of five years for the offense, doubled for the strike prior, and five years each for the three prior serious felony convictions, and a stipulated $200 restitution fine. The remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) for purposes of restitution. The court sentenced defendant accordingly.
Defendant appeals. The trial court denied defendant's request for a certificate of probable cause (§ 1237.5).
We note that, at the entry of the plea hearing, defense counsel stated that defendant would "waive his appellate rights." When the trial court explained the consequences of his plea, the trial court stated that defendant would not have a right to appeal "any of the issues that have been litigated in this case as a result of your plea." The trial court then obtained defendant's waiver of his constitutional rights but not his right to appeal. Defendant never personally and on the record waived his right to appeal. In his request for a certificate of probable cause, defendant complained that he had not been advised concerning his right to appeal generally or his right to appeal search and seizure issues. He claimed he was not properly admonished concerning his right to appeal and thus his waiver was ineffective. The trial court denied defendant's request for a certificate of probable cause, noting defendant's waiver of his appellate rights. Although defendant was advised that his plea meant he would not be able to appeal any issues which had been litigated, those issues were not delineated and defendant did not forfeit his right to appeal any particular issue on the record. (See People v. Rosso (1994) 30 Cal.App.4th 1001, 1005-1007.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, challenging the sufficiency of the evidence, raising ineffective assistance of counsel, and claiming the trial court erred in denying his request for a certificate of probable cause. We affirm the judgment.
"A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon" must fully and timely comply with section 1237.5. (People v. Mendez (1999) 19 Cal.4th 1084, 1088.) The exceptions are: (1) search and seizure issues (§ 1538.5, subd. (m)) and (2) postplea issues, such as sentencing, which do not affect the validity of the plea. (Mendez, at p. 1096; People v. Panizzon (1996) 13 Cal.4th 68, 74-75 (Panizzon).)
"It has long been established that issues going to the validity of a plea require compliance with section 1237.5." (Panizzon, supra, 13 Cal.4th at p. 76.) "In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." (People v. Ribero (1971) 4 Cal.3d 55, 63; see also People v. Johnson (2009) 47 Cal.4th 668, 681.)
Defendant claims the facts underlying his robbery conviction are insufficient and requests that this court construe his supplemental brief as a writ of habeas corpus, citing People v. Jerome (1984) 160 Cal.App.3d 1087.
We decline to do so. Jerome is distinguishable. The defendant in that case entered a plea to oral copulation of a minor under the age of 14 years when in fact, the minor was 15 years old. Because it was legally impossible for defendant to commit the charged crime, and due to the defendant's entry of a negotiated plea and failure to obtain a certificate of probable cause, this court construed the non-appealable portion of his appeal as a petition for a writ of habeas corpus. (People v. Jerome, supra, 160 Cal.App.3d at pp. 1093-1095.)
Here, defendant has not established that it was legally impossible for him to commit the charged crime. He simply claims that the victim was not robbed of any personal property by force or fear and that although she was initially accosted, she was allowed to leave the area when the other employees were moved to the room containing the safe.
Defendant did not obtain a certificate of probable cause. Even if he had, defendant entered a negotiated no contest plea which admits all facts, relieving the prosecution of proving the elements of the offense and forfeiting his right to challenge the evidence on appeal. (In re Chavez (2003) 30 Cal.4th 643, 649 (Chavez); People v. Turner (1985) 171 Cal.App.3d 116, 125-126 (Turner).) Defendant's insufficiency of the evidence claim was forfeited by his plea.
Defendant contends defense counsel rendered ineffective assistance in several respects. Where defendant challenges the validity of his plea due to ineffective assistance of counsel, defendant must obtain a certificate of probable cause in order to raise the issue on appeal. (Chavez, supra, 30 Cal.4th at pp. 649-651; People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245 (Stubbs).)
Defendant claims defense counsel failed to file a petition for a writ of mandate to challenge the trial court's denial of his motion to dismiss for violation of his right to a speedy trial. Defendant's challenge to counsel's preplea performance is barred by defendant's failure to obtain a certificate of probable cause. (Chavez, supra, 30 Cal.4th at p. 651; Stubbs, supra, 61 Cal.App.4th at pp. 244-245.) Moreover, defendant entered a plea of no contest; he thus waived his speedy trial claim. (Turner, supra, 171 Cal.App.3d at p. 128; People v. Hayton (1979) 95 Cal.App.3d 413, 415, 417-419; People v. Hocking (1956) 140 Cal.App.2d 778, 780.)
Defendant argues that "Counsel failed to file a request for an issuance of a certificate of probable cause forcing defendant to submit his own."
But defendant personally filed a request for a certificate of probable cause and it was denied. Defendant has not shown prejudice from defense counsel's failure to file a request for a certificate of probable cause.
Perhaps anticipating our response to his argument, defendant goes on to claim that "Defendant's petition could be construed as a motion to withdraw his plea and counsel's failure to review the petition prior to making any representations to the court regarding that the matter was a 'post-judgment' issue eliminated the possibility that the court would have considered the petition as one to withdraw his plea whether meritorious or not." We are not sure we understand the argument, but to the extent it suggests the request for a certificate of probable cause might have been deemed a motion to withdraw defendant's plea, we fail to see how that could be the case. Defendant cites no authority supporting his argument, and we are aware of none.
Defendant claims defense counsel failed to file a petition for a writ of mandate to compel the trial court to issue a certificate of probable cause. Defendant claims an unknown attorney filed a petition for a writ of mandate but raised a non-reviewable issue (speedy trial). Defendant does not identify the issue defense counsel should have raised. Defendant has failed to demonstrate defense counsel's performance was deficient.
Defendant contends the trial court abused its discretion in denying his request for a certificate of probable cause, having labeled defendant's request as frivolous and devoid of merit. An order denying a certificate of probable cause is not appealable and may be reviewed only by writ of mandamus. (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.)
Defendant claims defense counsel failed to object on hearsay grounds to the prosecutor's motion to compel defendant to provide a DNA sample. As far as counsel's preplea performance is concerned, defendant's failure to obtain a certificate of probable cause bars this contention on appeal. Moreover, defendant's plea conceded that "the prosecution possess[ed] legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt" and thus forfeited the right to challenge the admissibility of the DNA evidence. (Turner, supra, 171 Cal.App.3d at p. 125.)
But, to the extent defendant's motion to exclude the obtained DNA evidence can be construed as a motion to suppress (defense counsel cited both the Fourth and Fifth Amendments), we note the following:
Defendant was arrested on February 7, 2010, and was in custody on a parole hold. On March 10, 2010, after a preliminary hearing, defendant was held to answer. On May 7, 2010, the trial court issued an order to compel defendant to provide swabs of the lining of his mouth. According to the prosecutor's declaration in support of the motion to compel, defendant was identified by the victims and he was seen on video surveillance as entering the bookstore with a soda bottle and leaving without it. The soda bottle was located where he had been hiding. Defense counsel's only objection at the time of the hearing on the motion to compel was that a DNA sample was in the DNA bank.
Defendant refused to permit the district attorney's investigator to collect a sample because the trial court's order did not include the use of force to compel. When the prosecutor sought the use of reasonable force to compel defendant to give the sample, defense counsel noted that defendant had been incarcerated in 2006 and argued that a DNA profile, which had been completed pursuant to section 296 at that time, should be adequate. The trial court concluded that it would take too long to obtain the DNA results from the Department of Corrections and Rehabilitation in view of the scheduled trial date. The trial court issued a second order, requiring defendant to permit collection of a DNA sample and if he refused, reasonable force could be used. Defendant allowed a sample to be taken without the use of force.
In his motion to exclude the DNA evidence, defendant argued the collection was an unlawful seizure in violation of the Fourth Amendment and violated his privilege against self-incrimination, citing the Fifth Amendment. The trial court denied the motion, commenting that there was not "any practical difference between an order pursuant to a search warrant and an order such as was rendered by the court under these circumstances . . . ."
"'[T]he extraction of biological samples from an adult felon is not an unreasonable search and seizure within the meaning of the Fourth Amendment.' [Citations.] . . . '[N]onconsensual extraction of biological samples for identification purposes does implicate [federal] constitutional interests' [citation], but . . . such nonconsensual extraction of biological samples from adult felons is reasonable because 'those convicted of serious crimes have a diminished expectation of privacy and the intrusions authorized by the [DNA] Act are minimal' while 'the Act serves compelling governmental interests,' including '"the overwhelming public interest in prosecuting crimes accurately." [Citation.] A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred manifestly serves a compelling public interest.'" (People v. Robinson (2010) 47 Cal.4th 1104, 1121-1122, fn. omitted (Robinson).)
"'[P]arolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.'" (U. S. v. Scott (9th Cir. 2006) 450 F.3d 863, 873; see also Samson v. California (2006) 547 U.S. 843, 850-851 [165 L.Ed.2d 250, 258-259].)
Defendant was a convicted felon on a parole hold and he had been held to answer for the crimes charged in the complaint. Being a convicted felon on parole, he had no reasonable expectation of privacy regarding DNA sampling. (Robinson, supra, 47 Cal.4th at pp. 1120-1121; U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813, 833-836.) Moreover, there was probable cause to believe he had committed the charged offenses and the trial court issued its order thereon. (U. S. Const., 4th Amend.; Robinson, at pp. 1119-1120, 1122, fn. 18; see Friedman v. Boucher (9th Cir. 2009) 580 F.3d 847, 860, italics added ["forcibly taking a DNA sample from a pre-trial detainee without a search warrant or other court authority would violate the detainee's clearly established Fourth Amendment rights"].) There was no error.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
We note errors in preparation of the abstract of judgment. The abstract erroneously references section 667, subdivisions (b) through (i), rather than section 667, subdivision (a), as the statutory authority for each five-year prior enhancement. And the box to be checked for conduct credit is section 2933.1, not section 4019. We will order the abstract corrected accordingly.
The trial court is directed to prepare a corrected abstract of judgment, reflecting that section 667, subdivision (a), is the statutory authority for each five-year prior enhancement, and that conduct credit was awarded pursuant to section 2933.1, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: BLEASE , Acting P. J. MAURO , J.
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