Filed 8/26/16 P. v. Robinson CA3
Opinion following rehearing
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C079234

                   Plaintiff and Respondent,                                     (Super. Ct. No. 14F08157)

         v.                                                                    OPINION ON REHEARING

MICHAEL DONTI ROBINSON,

                   Defendant and Appellant.




         This appeal originated as a review pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende) after defendant Michael Donti Robinson pleaded no contest to felony
driving with a blood-alcohol content of 0.08 percent within 10 years of three or more
felony driving under the influence (DUI) convictions (Veh. Code, § 23152, subd. (b)) and
admitted four prior DUI convictions and a prior strike conviction and was sentenced to
four years in state prison.
         Defendant’s counsel filed a Wende brief, and we subsequently filed our opinion
finding no arguable error in defendant’s favor and affirming the judgment. (People v.


                                                             1
Robinson (Apr. 12, 2016, C079234) [nonpub. opn.].) Defense counsel filed a petition for
rehearing arguing that, due to a misunderstanding between defense counsel and
defendant, this court never received defendant’s supplemental brief. We granted the
petition for rehearing, vacated our opinion, and accepted defendant’s supplemental brief
for consideration.
        Defendant’s claims going to the validity of his plea bargain are barred for lack of a
certificate of probable cause. (Pen. Code, § 1237.5.)1 Therefore, we again affirm the
judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND2
        On November 1, 2014, California Highway Patrol Officer Stephen Newman
observed defendant make an illegal U-turn at an intersection. Officer Newman stopped
defendant’s car and noticed defendant was exhibiting signs of intoxication, such as
slurred speech, flushed complexion, red and watery eyes, and nervous, fidgety behavior.
Defendant admitted having consumed one beer earlier in the day. Officer Newman
conducted several field sobriety tests, all of which defendant performed unsatisfactorily.
Preliminary alcohol screening testing revealed defendant had a blood-alcohol level of
0.13 percent. A subsequent blood test yielded the same result.
        Defendant was charged by criminal complaint, deemed the information, with
felony DUI of alcohol within 10 years of three or more felony DUI convictions (Veh.
Code, § 23152, subd. (a) – count one), and felony driving with a blood-alcohol content of
0.08 percent within 10 years of three or more felony DUI convictions (Veh. Code, §
23152, subd. (b) – count two). The information also alleged defendant suffered four prior




1   Unspecified statutory references are to the Penal Code.
2 In light of defendant’s stipulated disposition, the facts are taken from the preliminary
hearing, as stipulated by the parties.

                                              2
DUI convictions (Veh. Code, §§ 23152, subd. (b), & 23103.5) and one prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12).
       Prior to the preliminary hearing, the trial court heard and denied defendant’s
motion to strike the prior strike conviction pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.
       Following the preliminary hearing, defendant filed a “Motion for Review of
Record to Allow Defendant to Take an Offer Not Relayed to Him by Counsel.”
Defendant argued a 32-month offer had previously been made to his prior counsel but
was never relayed to him, resulting in prejudicial ineffective assistance of counsel. The
prosecution opposed the motion arguing no 32-month offer was ever made. The trial
court denied the motion.
       Defendant entered a negotiated plea of no contest to count two and admitted the
four prior DUI convictions and the prior strike conviction in exchange for a stipulated
sentence of four years (the middle term of two years, doubled for the prior strike) and
dismissal of count one. The parties stipulated to the factual basis as summarized by
counsel.
       The trial court sentenced defendant to the middle term of two years for count two,
doubled for the prior strike, for an aggregate term of four years in state prison. The court
imposed “minimum fees and fines,” and awarded defendant 372 days of presentence
custody credit (186 actual days plus 186 conduct credits).
       The court’s minute order and the abstract of judgment reflect the following fees
and fines: a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation
restitution fine, stayed pending successful completion of parole (§ 1202.45), a $40 court
operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code,
§ 70373).
       Defendant filed a timely amended notice of appeal. The trial court denied his
request for a certificate of probable cause.

                                                3
                                        DISCUSSION
       Defendant filed a supplemental letter brief raising a number of “discrepanc[ies]”
in the proceedings with which he takes issue. His claims, to the extent we can decipher
them, include that the district attorney and trial court did not afford him “the proper
rehabilitative treatment incarceration program such as the ‘Senate Bill 618 program’ ”;
the probation department’s recommendation that he receive “the least [and] minimum
punishment” was overlooked; his public defender was ill-prepared and unknowledgeable
of the facts of his case, resulting in “ ‘misrepresentation’ ”; his private counsel failed to
communicate and negotiate the district attorney’s 32-month offer; his Romero motion
was “rushed” and not “properly prepared” by defense counsel.
       Defendant’s failure to obtain a certificate of probable cause bars any challenges to
the validity of his plea, including his challenge to the negotiated sentence imposed as part
of his plea bargain. (People v. Mendez (1999) 19 Cal.4th 1084, 1099 [appellate court
must decline to review an issue that requires a certificate of probable cause if none was
obtained]; People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187; People v. Buttram
(2003) 30 Cal.4th 773, 781-791; People v. Panizzon (1996) 13 Cal.4th 68, 79.)
       All of the issues raised in his supplemental brief are challenges to his stipulated
sentence of four years in prison (two years doubled for his strike) except his challenge to
the trial court’s presentence credit calculation, wherein he broadly claims that the court
“made a[] mistake” but does not elaborate. We have reviewed the credit award to the
extent we are able, given that the record on appeal commences with defendant’s
December 16, 2014, in-custody arraignment on his November 1, 2014, DUI. It appears
that defendant was cited and taken into custody at the time of his offense, but later
released and not formally charged and re-arrested until December 15, 2014. The
186 days of actual custody (to which his attorney agreed at sentencing) signals that he
was in custody for all but six days between his initial arrest on November 1, 2014, and
his May 11, 2015, sentencing. Although is appears unlikely that defendant would be in

                                               4
custody for all but six days of the 45 days between his initial arrest and later arraignment,
any error would be in defendant’s favor in the form of extra credit. As we cannot discern
from this record which days defendant was in custody before his arraignment, we cannot
determine whether there was error.
                                      DISPOSITION
       The judgment is affirmed.


                                             /s/
                                           Blease, Acting P. J.


We concur:



         /s/
       Duarte, J.



         /s/
       Hoch, J.




                                              5
