People v. Patton CA3

Filed 10/21/14 P. v. Patton CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C075013

Plaintiff and Respondent, (Super. Ct. No. CR030785)

v.

FRANK TIM PATTON, JR.,

Defendant and Appellant.

Defendant Frank Tim Patton, Jr., pleaded guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for a stipulated county jail term of two years (Pen. Code, § 1170, subd. (h); undesignated statutory references are to the Penal Code) and dismissal of two related counts and an on-bail enhancement (§ 12022.1). On the written plea form, defendant expressed his understanding “that the court [was] allowing [him] to surrender at a later date to begin serving time in custody” and expressed his agreement “that if [he failed] to appear on the date set for surrender without a legal excuse, [his] plea [would] become an ‘open plea’ to the court, [he would] not be allowed to withdraw [his] plea, and [he might] be sentenced

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up to the maximum allowed by law.” In lieu of taking an Arbuckle waiver (People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle)) and setting a sentencing date, the trial court immediately sentenced defendant to the stipulated two-year jail term and did not remand him into custody. After defendant failed to turn himself in as required, the trial court resentenced him to three years in local custody. Defendant did not obtain a certificate of probable cause. On appeal, defendant contends there was no Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz)) and the trial court had no jurisdiction to sentence him the second time. He claims the three-year sentence is statutorily unlawful and a violation of federal due process. We have no occasion to decide whether the first sentencing erected a statutory or due process bar to the second sentencing. The written plea form says that defendant can be sentenced to a maximum term if he fails to surrender, and his claim that he cannot be so sentenced attacks what the plea form says. Because defendant did not obtain a certificate of probable cause, his appeal must be dismissed. FACTS1 On May 1, 2013, at 10:22 p.m., officers stopped defendant’s truck and determined that he was under the influence of methamphetamine and his driver’s license was suspended. Police subsequently found methamphetamine in the truck and at defendant’s house, where an electronic scale was also found. Defendant admitted that he was selling methamphetamine.