Filed 12/13/13 P. v. Gaytan 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,

         Plaintiff and Respondent,                                                     F065828

                   v.                                                    (Super. Ct. No. 12CM2200)

DANIEL FRANCISCO GAYTAN,                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-

*        Before Kane, Acting P.J., Franson, J., and Peña, J.
       Appellant, Daniel Francisco Gaytan, pled no contest to possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted allegations that
he had a prior conviction within the meaning of the three strikes law (Pen. Code,1 § 667,
subds. (b)-(i)). Following independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436, we determined that the trial court did not impose a mandatory
parole revocation restitution fine. We will modify the judgment to include this fine and
affirm the judgment as modified.
                     FACTUAL AND PROCEDURAL HISTORY
       On June 23, 2012, Gaytan was a backseat passenger in a car that Hanford police
officers stopped to conduct a warrant arrest. After Gaytan and the other occupants were
removed from the car, the officers obtained the owner’s consent to search it. In the
backseat where Gaytan had been sitting, the officers found a pair of blue jeans. In one
pants pocket, the officers found a wallet containing Gaytan’s license. In another pocket,
they found a bindle containing .04 grams of methamphetamine hidden in a pack of
cigarettes.
       On July 17, 2012, the district attorney filed an information charging Gaytan with
possession of methamphetamine and having a prior conviction within the meaning of the
three strikes law.
       On August 3, 2012, Gaytan pled guilty to the possession of methamphetamine
charge and admitted the three strikes allegation in exchange for a stipulated 32-month
prison term, the mitigated term of 16 months, doubled because of Gaytan’s prior strike
conviction.




1      All further statutory references are to the Penal Code.



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       On September 17, 2012, after denying Gaytan’s Marsden2 motion and his request
to withdraw his plea, the court sentenced him pursuant to his negotiated plea to a 32-
month prison term.
       On September 20, 2012, Gaytan filed a timely notice of appeal. However, he did
not obtain a certificate of probable cause (§ 1237.5).
       Gaytan’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) However, in two documents filed in
this court on January 24, 2013, and February 13, 2013, Gaytan raises several contentions
that we consider seriatim.
       Gaytan contends his defense counsel provided ineffective representation by his
failure to inform Gaytan that he would be receiving a second strike under his plea
bargain. However, Gaytan’s possession of methamphetamine conviction does not qualify
as a prior conviction under the three strikes law (§ 667, subd. (d)(1)) because it is neither
a serious felony (§ 1192.7, subd. (c)), nor a violent felony (§ 667.5, subd. (c)). Thus,
there is no merit to Gaytan’s ineffective assistance of counsel claim.
       Gaytan contends he has been unable to earn any conduct credit in prison because
he was placed in administrative segregation for being a validated gang member. He
further contends the trial court did not advise him he would not be able to earn conduct
credit in prison and had he known this, it would have been a big factor in his decision
whether to accept the plea bargain. Gaytan asks this court to advance his parole date six
months so that he will receive the benefit of his plea bargain.
       Section 1237.5 provides that a defendant may not appeal “from a judgment of
conviction upon a plea of guilty or nolo contendere” unless the defendant has applied to


2      People v. Marsden (1970) 2 Cal.3d 118.



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the trial court for, and the trial court has executed and filed, “a certificate of probable
cause for such appeal.” (See People v. Mendez (1999) 19 Cal.4th 1084, 1094-1095.) “It
has long been established that issues going to the validity of a plea require compliance
with section 1237.5. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
       Gaytan’s contention that he was not advised he would be unable to earn conduct
credit in prison appears to challenge the validity of his plea. Therefore, it is not
cognizable on appeal because Gaytan did not obtain a certificate of probable cause and
for the additional reason that it relies on facts outside the record. (People v. Cooks (1983)
141 Cal.App.3d 224, 310.)
       Gaytan contends that upon his arrival in prison a $1,000 parole revocation fine
“was brought up from [his] last case” and he asks this court to suspend the fine because
he does not have the ability to pay it. However, issues relating to the imposition and
collection of a $1,000 parole revocation fine in a prior case are not cognizable on appeal
from the instant case because, in addition to relying on facts outside the record, they have
nothing to do with the instant case and should have been raised in an appeal from the
prior case.
       Gaytan’s final contention is that he qualified for and should have been granted
deferred entry of judgment pursuant to section 1000. This contention is not cognizable
on appeal because it too challenges the validity of his plea and Gaytan did not obtain a
certificate of probable cause. (People v. Padfield (1982) 136 Cal.App.3d 218, 227-228.)
       However, our review of the record disclosed that the court failed to impose a
mandatory parole revocation restitution fine. Section 1202.45, subdivision (a) provides:

              “(a) In every case where a person is convicted of a crime and his
       or her sentence includes a period of parole, the court shall, at the time of
       imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
       assess an additional parole revocation restitution fine in the same amount as
       that imposed pursuant to subdivision (b) of Section 1202.4. [¶] ... [¶]




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               “(c) The fines imposed pursuant to subdivision[] (a) ... shall be
         suspended unless the person’s parole, ... is revoked.” (Italics added.)
         Although the trial court imposed a $480 restitution fine, it did not impose a parole
revocation restitution fine in the same amount. Therefore, we will modify the judgment
to include this mandatory fine.
         Further, following an independent review of the record, we find that with the
exception of the issue discussed above, no reasonably arguable factual or legal issues
exist.
                                       DISPOSITION
         The judgment is modified to include a parole revocation restitution fine in the
amount of $480. The trial court is directed to prepare an abstract of judgment that
includes this fine and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.




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