People v. Moore CA1/1

Filed 8/23/16 P. v. Moore CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A146511 v. GARY A. MOORE, (Del Norte County Super. Ct. No. CRF149056) Defendant and Appellant.

Defendant Gary A. Moore appeals following a judgment entered pursuant to a no contest plea to a misdemeanor count of grand theft (Pen. Code, § 487);1 felony counts for embezzlement and forgery were dismissed. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment. Section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under section 1538.5, subdivision (m); and (2) postplea sentencing issues. (People v. Shelton (2006) 37 Cal.4th 1 All further statutory references are to the Penal code unless otherwise indicated. 1

759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Since defendant’s application for a certificate of probable cause was not granted, he is not able to challenge the validity of his plea or any other matter that preceded its entry, except as permitted under the exceptions. (People v. Cole (2001) 88 Cal.App.4th 850, 868.) Defendant made no suppression motion. Defendant duly completed an advisement of rights, waiver, and plea form. The court adequately voir dired defendant and discussed with both the prosecutor and defense counsel the reason for resolving the felony embezzlement/forgery case by way of plea to misdemeanor grand theft. The prosecutor stated the victim, Bruce Gates, was “not necessarily happy about the misdemeanor offer,” but the prosecution was going to face problems with the case “given the facts . . . discovered about how the business [owned by Gates and from which defendant stole funds] was run.” Gates, who attended the change of plea hearing told the court he did not see why the way in which he ran his business should have any bearing on defendant’s guilt. The court told Gates he would have an opportunity to be present at the restitution hearing and could provide input to the district attorney’s office on that issue. The court then accepted defendant’s no contest plea. The prosecution told the court that while it considered the plea “open” for purposes of sentencing, it had told defendant it would not be seeking “additional jail.” Defense counsel agreed that had been his understanding. The prosecution then proposed placing defendant on probation and retaining jurisdiction to order jail time if, at the time of the restitution hearing, the court concluded that was appropriate. Defense counsel did not object, and asked that the hearing be set after mid-November. The court then placed defendant on informal probation for three years, imposed a fine of $671, scheduled the first installment to be paid within days and “defer[red] . . . the remainder of the sentencing to the conclusion of the restitution hearing.” The restitution hearing was continued numerous times. When the case was called some 10 months later before a different judge, Gates appeared with an attorney and maintained the court could and should reject the plea agreement. The case was continued