THE PEOPLE v. JOSEFF JAMES WRIGHT (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In February 2009, Joseff James Wright pled no contest to one count of grand theft (Pen.Code, § 487, subd, (a), count 1),¹ 21 counts of commercial burglary (§ 459, counts 2–6, 9–24) and two counts of forgery (§ 475, subds. (b) & (c), counts 7 & 8), related to numerous fraudulent banking transactions in which he engaged between 2006 and 2008.   The plea agreement provided for a 10–year lid on appellant's sentence.   As to the grand theft count, appellant admitted that the value of the property taken was over $50,000 under former section 12022.6, subdivision (a)(1), and, as to all counts, that he had suffered two prior prison terms within the meaning of section 667.5, subdivision (b).  He was sentenced to an aggregate state prison term of nine years, receiving 290 days of actual custody credits and 144 days of conduct credits.

In a prior appeal from the judgment entered in this matter, we concluded that (1) appellant's claim that the two prior prison term enhancements were unlawful, was an improper attack on the plea, as he had not obtained a certificate of probable cause as required by section 1237.5, (2) appellant was entitled to an additional 146 days of conduct credits under section 4019 as amended on January 25, 2010, and (3) the matter had to be remanded for resentencing because the sentence imposed by the trial court included a two-year enhancement under section 12022.1, for committing the offenses while appellant was released on bail, though the trial court inadvertently failed to have appellant admit that allegation.

On remand, the trial court reimposed the nine-year sentence, while changing the manner in which that sentence was calculated.   The trial court commented that “I feel, from my review of this file today, plus my discussions about the case, plus my reading of the remittitur, knowing the case from before and today, that a nine year sentence was a break to you.   I reduced it down from what had been considered, talked about.   I gave you a break.   You were facing, if you went to trial and got convicted, the maximum, if you were to get the maximum, many many more years.   I think it was a just sentence, I think it was an appropriate sentence, and that's why I gave it.   I don't intend to change the total amount of the sentence except the custody credits.   I am giving you additional custody credits because of what the District Court of Appeals has said I should do.”

The trial court then sentenced appellant to the high term of three years on count 2 for commercial burglary, an additional year on that count for the section 12022.6 enhancement, a year for the section 667.5 prior prison term enhancement, and consecutive sentences of one-third the midterm on counts 3 through 5 and 9 through 11, or eight months on each for an additional total of four years.   Appellant appeals from the judgment entered upon his resentencing.²

After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.   On July 12, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.   On August 5, 2011, appellant filed a supplemental brief contending that, (1) he was improperly induced to enter the plea agreement because he received insufficient advice from his attorney as to the consequences of doing so, (2) his Sixth Amendment rights were violated by virtue of his having received ineffective assistance of counsel by reason of his attorney's failure to (a) accurately advise appellant of the consequences of his plea, (b) properly investigate appellant's purported prior convictions, and (c) to object to the imposition of four “illegal enhancements,” and (3) he was deprived of due process when the trial court considered unreliable and inaccurate information regarding prior convictions.

On October 17, 2011, we requested from the parties letter briefs on the issue of whether appellant is entitled to receive the benefit of the amendment to section 12022.6, effective January 1, 2008, increasing from $50,000 to $65,000 the amount necessary to impose that enhancement.

DISCUSSION

I. Appellant's claims

A. Improper inducement to enter plea agreement

Section 1237.5 states the general rule that a defendant can appeal from a judgment of conviction upon a plea of guilty or no contest only if the defendant files a statement under oath showing reasonable grounds going to the legality of the proceedings, and the trial court executes and files a certificate of probable cause for the appeal.³  (People v. Lloyd (1998) 17 Cal.4th 658, 663.)

Appellant's claim that he was improperly induced to enter the plea agreement is precisely the type of claim that requires a certificate of probable cause.   Having failed to obtain one, this challenge to the plea agreement is dismissed.

B. Ineffective assistance of counsel

Appellant claims that he suffered ineffective assistance of counsel by virtue of his attorney's failure to adequately explain to him the consequences of entering into the plea agreement.   This claim must generally be raised by writ of habeas corpus based on matters outside the record.  (People v. Salcido (2008) 44 Cal.4th 93, 172.)   The record on this appeal sheds no light on why counsel acted or failed to act in the manner challenged.   C. Trial court considered improper information regarding prior convictions

Appellant contends that the trial court improperly considered erroneous information regarding his prior convictions, which he claims were overturned on appeal.   This is the precise contention he raised in his previous appeal and which we concluded required a certificate of probable cause in order to present it to this court.   We similarly conclude on this appeal because appellant has not obtained a certificate of probable cause.   We therefore again dismiss this claim.

II. Propriety of imposition of section 12022.6 enhancement

When resentenced on remand from the prior appeal, the trial court imposed the section 12022.6 one-year enhancement on his conviction of burglary in count 2. In connection with that count, the information alleged that that burglary was committed on February 28, 2008.   Appellant admitted in connection with his plea agreement that the value of the property taken by him was over $50,000.

Section 12022.6 was amended in 2007, effective January 1, 2008, before the burglary in count 2 was alleged to have been committed, before the information in this matter was filed and before sentencing and resentencing occurred, to increase the enhancement amount from $50,000 to $65,000.   Consequently, appellant's admission of having taken in excess of $50,000 was insufficient to allow imposition of the section 12022.6 enhancement which then required that more than $65,000 had to be taken.⁴

As a result, we must again remand this matter to the trial court for resentencing consistent with this decision.

III. Wende review

In addition to the issues considered above, we have examined the entire record and are satisfied that appellant's attorney has fully complied with her responsibilities and that no arguable issues exist.  (People v. Wende (1979) 25 Cal.3d 436, 441.)

The section 12022.6 enhancement on count 2 is stricken and the matter is remanded for resentencing.   The judgment is otherwise affirmed.   On remand, a new abstract of judgment must be filed to reflect the new sentence.   Additionally, custody credits must be awarded for the days between appellant's last sentencing and the date of the resentencing on this remand.  (People v. Buckhalter (2001) 26 Cal.4th 20, 40.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. We grant appellant's request that we take judicial notice of the records and files in the prior appeal in this case, appellate case No. B214581..  FN2. We grant appellant's request that we take judicial notice of the records and files in the prior appeal in this case, appellate case No. B214581.

FN3. Section 1237.5 states:  “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.”.  FN3. Section 1237.5 states:  “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.”

FN4. Given our conclusion that the section 12022.6 enhancement was improperly imposed on count 2 because of the amendment of that section increasing the amount of money that must be misappropriated in order to impose it, we need not decide (1) whether imposition of that enhancement was also improper because the information alleged it only in connection with count 1, not count 2 on which it was imposed, (2) whether that enhancement can be imposed on a burglary conviction, which is completed at the time of entry with the intent to commit a felony, before anything is taken, and (3) whether if it were applied to a count alleging an offense that occurred before the amendment became effective on January 1, 2008, it would apply retroactively..  FN4. Given our conclusion that the section 12022.6 enhancement was improperly imposed on count 2 because of the amendment of that section increasing the amount of money that must be misappropriated in order to impose it, we need not decide (1) whether imposition of that enhancement was also improper because the information alleged it only in connection with count 1, not count 2 on which it was imposed, (2) whether that enhancement can be imposed on a burglary conviction, which is completed at the time of entry with the intent to commit a felony, before anything is taken, and (3) whether if it were applied to a count alleging an offense that occurred before the amendment became effective on January 1, 2008, it would apply retroactively.

THE COURT: * FN*.  DOI TODD, Acting P. J., ASHMANN–GERST, J., CHAVEZ, J.