Filed 2/5/16 P. v. Collins CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143878
v.
QUINCY COLLINS,                                                      (Solano County
                                                                     Super. Ct. No. FCR307121)
         Defendant and Appellant.


         Pursuant to a negotiated disposition, Quincy Collins entered pleas of no contest in
separate matters to a felony violation of a Vehicle Code section 2800.2 and a
misdemeanor violation of Penal Code section 273.5. Other charges and pending cases
were dismissed. While Collins was released on bail pending sentence, he was again
arrested. The court sentenced Collins to an aggravated term of three years in state prison
on the felony violation.
         Assigned counsel has submitted a Wende brief,1 certifying that counsel has been
unable to identify any issues for appellate review. Counsel also submitted a declaration
confirming that Collins was advised of his right to personally file a supplemental brief
raising any points which he wishes to call to the court’s attention. No supplemental brief
has been filed. As required, we have independently reviewed the record. (People v.
Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and affirm.



         1
             People v. Wende (1979) 25 Cal.3d 436.


                                                             1
                      I.   BACKGROUND AND PROCEDURAL HISTORY2
       On April 26, 2014, a patrol officer observed Collins driving a vehicle. There was
probable cause to arrest Collins on an unrelated matter. The officer was driving a fully
marked police vehicle and was in full uniform. As Collins passed the patrol vehicle, he
and the officer made eye contact. Collins accelerated away from the patrol vehicle and
ran through a stop sign. The officer activated his lights and sirens. Collins drove at
speeds reaching 65 miles per hour in residential areas. He ran through stop signs and a
stop light with other vehicles and pedestrians in the area. Collins eventually parked and
fled the vehicle, and he was pursued on foot. A canine unit was deployed, and Collins
was located and taken into custody. Collins told the probation officer that when he fled,
he was already out on bail in another matter and did not want to return to custody.
       On April 29, 2014, the Solano County District Attorney charged Collins by felony
complaint with violations related to the events on April 26 as well as violations alleged to
have occurred on April 19 (case No. FCR307121): evading an officer while operating a
motor vehicle (Veh. Code, § 2800.2, subd. (a); Counts 1 & 5); child abuse or
endangerment (Pen. Code, § 273a, subd. (a); Count 2); misdemeanor resisting an officer
(id., § 148, subd. (a)(1); Counts 3 & 9); misdemeanor reckless driving (Veh. Code,
§ 23103, subd. (a); Count 4); misdemeanor possession of a controlled substance (Health
& Saf. Code, § 11378; Count 6); possession of concentrated cannabis (id., § 11357, subd.
(a); Count 7); possession of ammunition (Pen. Code, § 30305, subd. (a)(1); Count 8); and
misdemeanor prowling (id., § 647, subd. (h), Count 10). It was further alleged that
Collins was not eligible for county jail imprisonment due to a prior serious felony
conviction. (Pen. Code, §§ 1170, subds. (f), (h)(3), 1385.) Collins entered a not guilty
plea to all counts.

       2
         The background facts are taken from the probation officer’s presentence report,
which summarized the facts of the instant case (No. FCR307121) from Fairfield police
report No. 14-4255. At the time of Collins’s pleas, the parties stipulated that that the
court could consider the facts set forth in the “declaration of probable cause set forth to
the arrest and detention report, Sheriff’s [sic] Case Number 14-4255, for the factual basis
for the plea.”


                                             2
       On July 28, 2014, pursuant to a negotiated disposition, Collins entered a plea of no
contest to Count 5 of the complaint, a felony violation of Vehicle Code section 2800.2 on
April 26. The remaining charges and allegations were dismissed. Separate charges for
possession of marijuana and methamphetamine (case No. FCR308595) were dismissed
with a Harvey3 waiver. It was agreed that the maximum punishment which the court
might impose would be three years in the California Department of Corrections and
Rehabilitation, with no initial state prison unless Collins failed to appear on the date set
for sentencing, committed a new offense, or violated the terms of his release before
judgment and sentence (i.e., a Cruz waiver).4 Under those circumstances, the plea would
become “open”—Collins would not be allowed to withdraw his plea and could be
sentenced up to the maximum term of three years in state prison.
       Collins committed a new offense while he was on bail between the time of his plea
and the time of sentencing. At the time of sentencing in the instant case, drug charges
from Collins’s newest case (case No. 310798) were dismissed, with a stipulation that they
would constitute a Cruz violation and that sentencing would be “open.”5
       The court denied probation in the felony matter and sentenced Collins to the
aggravated term of three years in state prison, finding aggravated circumstances based on
Collins’s criminal history, his multiple failures in drug treatment programs, his failure to
accept responsibility for his actions, and his demonstrated danger to the community.6
The court awarded total presentence credits of 30 days. Collins filed at timely pro se
notice of appeal based on the sentence or other matters occurring after the plea that did
not affect the validity of the plea. A certificate of probable cause was not requested.

       3
           People v. Harvey (1979) 25 Cal.3d 754.
       4
           People v. Cruz (1988) 44 Cal.3d 1247, 1254.
       5
        Counsel at a later point questioned the terms of the Cruz waiver at the time of the
plea. The court said it would set the case for a hearing on the concession of the Cruz
waiver if there was no admission. Counsel withdrew any objection to the Cruz waiver
and asked that the court sentence Collins at that time.
       6
         Collins also received a concurrent one-year county jail term on the misdemeanor
violation of Penal Code section 273.5 noted ante (case No. 301323).

                                              3
                                    II.     DISCUSSION
       Collins did not obtain a certificate of probable cause (Pen. Code, § 1237.5; Cal.
Rules of Court, rule 8.304(b)), and so no cognizable issues are before us relating to his
guilt or to his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099; People v.
Panizzon (1996) 13 Cal.4th 68, 74.)
       To the extent Collins seeks to challenge imposition of a prison sentence, his failure
to obtain a certificate of probable cause in these circumstances is equally fatal to his
appeal. “ ‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is
properly viewed as a challenge to the validity of the plea itself’ and thus requires a
certificate of probable cause.” (People v. Shelton (2006) 37 Cal.4th 759, 766, quoting
People v. Panizzon, supra,13 Cal.4th at p. 79.) Under the Cruz waiver terms, the trial
court could impose any sentence up to the three-year maximum, and the court expressly
advised Collins that he could be sentenced to the maximum term if the terms of the Cruz
waiver were violated. “The Cruz waiver in turn was an integral part of defendant’s plea
agreement. Therefore, defendant’s challenge to the agreed-upon sentence is a challenge
to the validity of his plea and such a challenge requires a certificate of probable cause.”
(People v. Vargas (2007) 148 Cal.App.4th 644, 652; id. at pp. 651–652.) Moreover, even
if the issue were cognizable, “[p]robation is not a matter of right but an act of clemency,
the granting and revocation of which are entirely within the sound discretion of the trial
court.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.)
       To the extent that Collins challenges the court’s choice of the upper term, the court
expressly weighed aggravating and mitigating circumstances in assessing the appropriate
prison term. (Cal. Rules of Court, rules 4.410, 4.425.) The choice of the appropriate
term rests within the court’s sound discretion. (Pen. Code, § 1170, subd. (b); see Cal.
Rules of Court, rule 4.420.) No abuse of the trial court’s “broad discretion” in sentencing
is shown. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
                                    III.   DISPOSITION
       The judgment is affirmed.



                                              4
                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




                            5
