People v. Robertson CA3

Filed 4/30/14 P. v. Robertson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C074055

Plaintiff and Respondent, (Super. Ct. Nos. CRF11-2447, CRF12-0874 & CRF12-1362) v.

JOHN THOMAS ROBERTSON,

Defendant and Appellant.

Defendant entered into a comprehensive plea agreement to resolve three cases by which lids on state prison terms were settled, imposition of sentence was suspended, and formal probation was granted on certain terms and conditions. Six months later, after defendant was found in violation of probation, his probation was revoked and the trial court imposed a term in state prison that was within the range permitted by the plea bargain. Defendant appeals, solely contending the trial court should have stayed the sentence on one count in one of the three cases (CRF12-1362), attempted criminal threat

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(one-third the midterm, or four months), based on Penal Code section 654.1 During sentencing, defendant made no section 654 objection or argument, the prosecutor made an opaque, off-hand remark about it, and the trial court expressly found it did not apply. Defendant did not obtain a certificate of probable cause. We dismiss the appeal. Defendant here contends the trial court should have stayed the short consecutive sentence on the attempted criminal threat (CRF12-1362) under section 654 because it involved the same course of conduct with the same objective as the other offense, spousal abuse, in that case. In his opening brief, he does not mention that he failed to obtain a certificate of probable cause. The Attorney General contends defendant’s claim is forfeited for lack of a certificate of probable cause.2 In his reply brief, defendant claims a certificate of probable cause was unnecessary because: (1) he did not agree to a maximum sentence under the plea agreement; (2) he was not sentenced to incarceration after his plea, but only after his violation of probation six months later; and (3) a section 654 challenge to a potential sentence after violation of probation was explicitly reserved at the plea. Even assuming defendant may raise these arguments for the first time in a reply brief (cf. Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061-1062, fn. 7), we find them unpersuasive. A defendant may not appeal from a judgment of conviction following a plea of guilty or no contest unless he first obtains a certificate of probable cause. (§ 1237.5, subd. (b); People v. Cuevas (2008) 44 Cal.4th 374, 383-384.) “Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed