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The People v. Henry Leroy Harmon

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


August 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HENRY LEROY HARMON, SR., DEFENDANT AND APPELLANT.

(Super. Ct. No. CM035345)

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

P. v. Harmon

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On October 28, 2011, defendant Henry Leroy Harmon, Sr., was found in possession of 17 .40-caliber rounds. He had a 2004 conviction for possession of a destructive device (former Pen. Code, § 12303.3)*fn1 and a 1981 conviction for assault with a deadly weapon (§ 245, former subd. (b)).

Defendant was charged with possession of ammunition by a convicted felon (former § 12316, subd. (b)(1)) along with allegations that he suffered a prior prison term (§ 667.5), that his prior conviction for possession of a destructive device was a serious or violent felony conviction within the meaning of the "three strikes" law (§ 1170.12), and that his prior assault with a deadly weapon conviction was a serious or violent felony subjecting him to a state prison term (§ 1170, subds. (f), (h)(3)). Defendant entered into a negotiated plea in which he pleaded no contest to possession of ammunition and admitted the prior prison term and state prison allegations, with a stipulated sentence of four years in state prison and dismissal of the strike allegation. In accordance with the plea, the trial court sentenced defendant to a four-year state prison term, imposed various fines and fees, and awarded 37 days of presentence credit (19 actual and 18 custody).

Defendant appeals. He did not obtain a certificate of probable cause.

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. (People v. Wende (1979) 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 asserting that he was coerced into the plea by trial counsel, the ammunition in his possession was obtained pursuant to an illegal search, and his 1981 assault conviction might not be a strike.

Defendant's allegation that counsel pressured him into a plea is an attack on the plea itself, which we cannot consider in the absence of a certificate of probable cause. (§ 1237.5; People v. Emery (2006) 140 Cal.App.4th 560, 562.) Defendant's attack on his prior section 245 conviction suffers from the same defect. Defendant admitted the prior conviction was a serious felony when he admitted the state prison allegation, which was in turn integral to the stipulated sentence of four years in state prison. Therefore, defendant cannot attack the prior conviction without a certificate of probable cause, because the claim implicitly attacks the plea. (People v. Johnson (2009) 47 Cal.4th 668, 678-679.)

Defendant is also foreclosed from contesting the search on appeal. Section 1538.5, subdivision (m) provides in relevant part: "A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence." Since defendant did not file a suppression motion in the trial court, we cannot consider his search and seizure claim on appeal.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON , J. DUARTE , J.


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