People v. Covarrubias CA5

California Court of Appeal Oct 28, 2021 No. F081693Unpublished

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Holding. The court held that an appeal challenging a negotiated sentence that was an integral part of a plea agreement is a challenge to the validity of the plea itself, requiring a certificate of probable cause under Penal Code section 1237.5. Because the defendant failed to obtain such a certificate, the appeal was dismissed.

Issues

Whether a defendant must obtain a certificate of probable cause to challenge a sentence that was a stipulated component of a plea agreement.
Whether the defendant's challenge to his resentencing constituted an attack on the validity of his plea.

Disposition. dismissed

Quotations verified verbatim against the opinion

“[A] certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement.”

“Because Covarrubias failed to obtain a certificate of probable cause, his claim is procedurally barred and his appeal must be dismissed.”

Filed 10/28/21 P. v. Covarrubias CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081693 Plaintiff and Respondent, (Super. Ct. No. MCR061948) v.

PEDRO CAMPOS COVARRUBIAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Allan E. Junker, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Smith, J. and Snauffer, J.

INTRODUCTION Appellant Pedro Campos Covarrubias pleaded guilty to three counts of committing a lewd and lascivious act against a child by means of force, violence, duress, menace and threat of great bodily harm (Pen. Code, § 288, subd. (b)(1)) in exchange for a prison term of 24 years. The prosecutor arrived at this term by selecting the middle term of eight years on all three counts. Following sentencing, the California Department of Corrections and Rehabilitation sent a letter notifying the superior court that the middle term of the applicable sentencing triad on one of the convictions—which occurred between 2009 and 2010—was six years, not eight years. Consistent with the parties’ stipulated sentence, the trial court resentenced Covarrubias to the upper term of eight years on count 6, and the middle term of eight years on counts 4 and 5. On appeal, Covarrubias contends he is entitled to have his sentenced reduced by two years, resulting in an overall prison sentence of 22 years. Covarrubias did not obtain a certificate of probable cause from the trial court upon filing his notice of appeal. His appeal is therefore dismissed. PROCEDURAL HISTORY In a second amended criminal complaint, the Madera County District Attorney charged Covarrubias with lewd and lascivious act upon a child under 14 years of age (Pen. Code,1 § 288, subd. (a), counts 1, 3, & 7), oral copulation and/or digital penetration upon a child under 10 years of age (§ 288.7, subd. (b), count 2), and lewd and lascivious act against a child by means of force, violence, duress, menace, or fear of immediate unlawful bodily injury (§ 288, subd. (b)(1), counts 4, 5, & 6).2 As to counts 1, 3, and 7,

People v. Covarrubias CA5

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