People v. Jones

• Citation: 33 Cal.App.4th 1087,39 Cal.Rptr.2d 530
• Decision Date: 31 March 1995
• Docket Number: No. H011998,H011998
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kimberly Janice JONES, Defendant and Appellant.

Page 530

39 Cal.Rptr.2d 530

33 Cal.App.4th 1087

The PEOPLE, Plaintiff and Respondent, v. Kimberly Janice JONES, Defendant and Appellant.

No. H011998.

Court of Appeal, Sixth District, California.

March 31, 1995.

Review Denied June 28, 1995.

[33 Cal.App.4th 1088] Robert Spertus under appointment by the Court of Appeal: under the Sixth District Appellate Program, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., Kevin Murphy, Deputy Atty. Gen., for respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Appellant Kimberly Janice Jones entered pleas of no contest to first degree burglary (Pen.Code, § 459, count I), two counts of possession of stolen property (Pen.Code, § 496, counts II and III), being under the influence of a controlled substance (Health & Saf.Code, § 11550, count IV) and resisting arrest (Pen.Code, § 148, count V). The court accepted the pleas and sentenced appellant on all counts, with the sentences on counts II through V to run concurrently to the four-year term imposed for count I. The court later modified the sentence by staying imposition of the sentences for counts II and III, with the stays to become permanent upon completion of the term for count I.

Appellant claims on appeal that she cannot lawfully be convicted both for burglary and for receiving the property stolen during the burglary. (Pen.Code, § 496, subd. (a); People v. Jaramillo (1976) 16 Cal.3d 752, 757, 129 Cal.Rptr. 306, 548 P.2d 706.) Respondent argues that appellant's failure to obtain and file a certificate of probable cause, pursuant to Penal Code section 1237.5, precludes review of the judgment. We agree with respondent and we therefore order the appeal dismissed.

FACTS AND PROCEDURAL HISTORY

Shortly after midnight on April 11, 1993, Hollister police responded to a call concerning a suspicious individual in a residential neighborhood. Police officers were directed to a parked truck, where they found appellant, who seemed disoriented and in a panic. The officers noticed appellant's hand was bleeding. Appellant told the officers that while she was out for a walk, she had broken into a house. Once inside, she had become lost and scared and quickly ran out the back door. Appellant stated that she had cut her hand on some glass while breaking into the residence. She was unable to recall any other details regarding the incident, except that she had jumped over some fences.

Officers searched the area and found personal property not belonging to appellant. They surmised that a residential burglary had occurred and they arrested appellant, after a brief struggle. Although police were unable to identify the burglarized residence at the time of the arrest, later that day police responded to a reported residential burglary in the same vicinity. At the residence, officers found the entryway window broken, sundry items thrown on the floor, and blood on the walls and floors. One of the victims, Robert Flores, subsequently identified some of the personal property recovered from appellant as belonging to him. Other property belonged to Ernesto Flores.

At appellant's personal interview in County Jail, she denied burglarizing the residence. She claimed that she had entered the house only to avoid a man she thought was following her. She gave no explanation as to why she had taken the property. Appellant admitted smoking a "joint" at a party earlier on the night of the burglary. The toxicology results showed the presence of amphetamines in her blood.

On July 16, 1993, an information was filed in San Benito County Superior Court charging appellant with first degree burglary (Pen.Code, § 459, count I), receiving stolen property (Pen.Code, § 496, counts II and III), being under the influence of a controlled substance (Health & Saf.Code, § 11550, count IV) and resisting arrest (Pen.Code, § 148, count V). Counts II and III were separately alleged because the property recovered belonged to two different victims. On July 20, 1993, appellant pled not guilty to the charges alleged in the information.

On September 14, 1993, appellant's attorney, with her concurrence, requested that he be relieved from appellant's case due to a breakdown in communications. Following a Marsden hearing (People v. Marsden, (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) the trial court denied the request. On October 26, 1993, appellant again requested that counsel be relieved. The court impliedly denied her request and set the case for trial.

On November 2, 1993, appellant withdrew her plea of not guilty and entered a plea of nolo contendere to all counts. At the proceeding, appellant's counsel stated that "[r]ather than accept an offer issued by the district attorney ... [appellant] feels that she can explain her situation to the probation department and would prefer to go without any conditions." After a thorough questioning, the trial court accepted appellant's plea.

On December 7, 1993, the court found appellant ineligible for probation and sentenced her to the midterm of four years on count I (Pen.Code, § 459), the midterm of two years each for counts II and III (Pen.Code, § 496), one year on count IV (Health & Saf.Code, § 11550) and six months on count V (Pen.Code, § 148), with the sentences on counts II through V to run concurrently.

On December 8, 1993, appellant, in propria persona, filed a notice of appeal from her "conviction on December 7, 1993." Counsel was appointed and on January 13, 1994, filed an amended notice of appeal. The amended notice stated that appellant "appeals solely upon grounds occurring after entry of the plea of guilty which do not challenge its validity. Thus, this appeal is authorized by the California Rules of Court, rule 31(d)."

On March 24, 1994, appellant's trial counsel filed a motion in the trial court, asking the court to vacate or correct her sentence on the basis that it was not authorized by law. Counsel argued it was error to convict appellant of receiving the same property she had allegedly stolen during the burglary, citing Penal Code, section 496, subd. (a), People v. Jaramillo, supra, 16 Cal.3d 752, 129 Cal.Rptr. 306, 548 P.2d 706 and People v. Stewart (1986) 185 Cal.App.3d 197, 203, fn. 2, 229 Cal.Rptr. 445. Counsel asked the court to vacate its judgment, rehear the matter and enter convictions either on the burglary count or on the receiving stolen property counts. The court denied the motion; however it modified appellant's sentence to stay imposition of the sentences on counts II and III, with the stays to become permanent upon completion of the term for count I.

DISCUSSION

Appellant contends the judgment of conviction must be vacated for the reason that "one may not be convicted of stealing and of receiving the same property." (People v. Jaramillo, supra, 16 Cal.3d 752, 757, 129 Cal.Rptr. 306, 548 P.2d 706; Pen.Code, § 496, subd. (a).) "A defendant may, of course, be charged with both crimes, but it is for the trier of fact to determine whether he [or she] is guilty as a thief or as a non-thief of concealing and withholding.' [Citation]." (Ibid.) Since it is not only the sentence for both crimes but the conviction for both which is unlawful, a stay of punishment is not the appropriate remedy. (Ibid.; People v. Stewart, supra, 185 Cal.App.3d at p. 203, fn. 2, 229 Cal.Rptr. 445; but see People v. Bernal (1994) 22 Cal.App.4th 1455, 1458, 27 Cal.Rptr.2d 839.)

The People contend that appellant may not challenge the legality of her conviction on appeal because she failed to obtain and file a certificate of probable cause. We agree that a certificate is required in this case. We therefore do not reach the merits of appellant's claim. Penal Code section 1237.5 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere ... 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 county clerk." The provisions of this section are implemented by rule 31(d) of the California Rules of Court which provides that a certificate is not necessary where the appeal is "based solely upon grounds ... occurring after entry of the plea which do not challenge its validity...." However in such a case the notice of appeal must state that it is based upon such grounds.

Appellant's amended notice of appeal included the language indicated by California Rules of Court, rule 31(d), proclaiming that it was based "solely upon grounds occurring after entry of the plea of guilty which do not challenge its validity." It appears, however, that appellant is not challenging the sentence, as modified, but rather is claiming that the conviction itself must be reversed or vacated because it is unlawful. Claims regarding the illegality of the judgment, whether on jurisdictional or other grounds, are precisely the types of claims which are covered by section 1237.5 and require a certificate of probable cause. "A judgment entered on a plea of guilty or nolo contendere is ... not reviewable on the merits. [Citations.] After such a plea the only issues which may be considered on appeal are those based upon constitutional, jurisdictional, or other grounds going to the legality of the proceedings and those only when the statutory requisites of Penal Code section 1237.5 are fulfilled." (People v. Padfield (1982) 136 Cal.App.3d 218, 224, 185 Cal.Rptr. 903, emphasis added.)

Our court has addressed this issue in two previous cases where defendant's plea included the admission of a prior serious felony. (People v. Arwood (1985) 165 Cal.App.3d 167, 211 Cal.Rptr....