People v. Robinson CA1/1

Filed 4/30/14 P. v. Robinson CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A139116 v. VIRGIL EARL ROBINSON, (Alameda County Super. Ct. Nos. 46758, 427614, Defendant and Appellant. 446399, 453236)

INTRODUCTION Defendant Virgil E. Robinson appeals from a four-year state prison sentence imposed as part of a negotiated disposition that included his guilty plea to a violation of Health and Safety Code section 11351.5, the dismissal of numerous other charges and cases against him, dismissal of the case against his codefendant, and an appeal waiver. His sole contention on appeal is that a state prison sentence for possession of crack cocaine for sale is either unauthorized or a clerical error, and he must instead be sentenced to county jail pursuant to the Criminal Justice Realignment Act of 2011 (hereafter Realignment Act, or Act) (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1; codified at Pen. Code, § 1170, subd. (h)).1 Defendant’s claim is barred by his failure to obtain a certificate of probable cause, as well as by his appeal waiver. We therefore dismiss the appeal.

1 Unless otherwise indicated, statutory references are to the Penal Code.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY2 On December 18, 2012, San Leandro police officers stopped a car driven by defendant for a traffic violation. Codefendant Moniqua Smiley was a passenger. The officers smelled the odor of marijuana emanating from the car, discovered defendant was on probation, and conducted a search of defendant, codefendant, and the car. The officers found controlled substances in their possession. The arrests resulted in the filing of a complaint charging defendant and Ms. Smiley with possession for sale of cocaine base; transportation of cocaine base; possession for sale of powder cocaine; and possession for sale of heroin. (Health & Saf. Code, §§ 11351.5 (count 1), 11352, subd. (a) (count 2), 11351 (counts 3 & 4).) As to defendant, the complaint also alleged five prior convictions, including one for violation of Health and Safety Code section 11351.5, one for violation of Health and Safety Code section 11351, and two prior prison terms. (§ 667.5, subd. (b).) Defendant’s total incarceration exposure was approximately 16 years. On January 8, 2013, defendant entered into a negotiated disposition. In exchange for his plea of no contest to count one, possession of cocaine base for sale, defendant agreed to a sentence of “four years in state prison.” The remaining three counts of the complaint were dismissed and the five prior convictions and allegations were stricken. The four-year sentence would be eligible for half-time credits, which would run from December 18, 2012. After being released from prison, defendant would be on parole for up to three years. In addition, sentencing was to be continued for four months to May 2, 2013, defendant’s phone was to be returned to Ms. Smiley, defendant’s existing felony probation was to be revoked and restored following his admission of a probation violation, two existing misdemeanor probation matters would be terminated, and a pending misdemeanor matter would be either not charged or dismissed. In response to