Filed 6/2/15 P. v. Cotey 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068841
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SCR013431)
                   v.

JOHN WILLIAM COTEY II,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Poochigian, J. and Peña, J.
       John William Cotey II pled guilty to possession of stolen property (Pen. Code,
§ 496, subd. (a))1 and admitted a prior strike conviction. He was sentenced to the agreed-
upon term of four years in prison.
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
stating that after reviewing the record, he did not identify any arguable issues. By letter
dated June 20, 2014, we invited Cotey to submit additional briefing. Corey responded to
our invitation by letter. We have reviewed the record and Cotey’s letter and conclude
there are no arguable issues in this case. Accordingly, we affirm the judgment.
                      FACTUAL AND PROCEDURAL SUMMARY
       Initially, three separate complaints were filed against Cotey. The operative
pleading was the first amended information that was filed after the trial court granted the
prosecution’s motion to consolidate the actions. The first amended information charged
Cotey with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)),
transportation of a controlled substance (id., § 11352, subd. (a)), possession of stolen
property (§ 496, subd. (a)), misdemeanor possession of marijuana (Health & Saf. Code,
§ 11357, subd. (c)), and misdemeanor vandalism (§ 594, subd. (a).) The information also
alleged as enhancements to counts 1, 2, and 3 that Cotey had (1) suffered a prior
conviction that constituted a strike within the meaning of section 667, subdivisions (b)
through (i), and (2) served a prison sentence as a result of a prior conviction within the
meaning of section 667.5, subdivision (b).
       Cotey entered into a plea agreement that required him to plead guilty to possession
of stolen property and to admit the prior conviction that constituted a strike. In exchange,
the remaining counts and enhancement would be dismissed, and he would be sentenced
to a prison term of four years (midterm of two years, doubled because of the prior
conviction). Cotey retained the right to argue at sentencing that his prior conviction did

       1All   statutory references are to the Penal Code unless otherwise noted.


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not constitute a strike as defined in section 667, subdivision (d). He signed a waiver of
rights/plea form and initialed the form in the appropriate places to indicate he understood
his trial rights and waived those rights. The trial court confirmed Cotey initialed, signed,
and understood the waiver of rights/plea form and then explained, and obtained a waiver
of, Cotey’s trial rights. The trial court also confirmed that Cotey and his attorney had had
ample time to discuss the charges and the plea agreement. The trial court then accepted
Cotey’s guilty plea and admission to the enhancement.
       At the sentencing hearing the trial court rejected Cotey’s argument that the prior
conviction did not constitute a strike within the meaning of section 667, subdivision (d).
The court then sentenced him to the agreed-upon prison term of four years. Cotey filed a
notice of appeal that indicated the basis of the appeal was whether the prior conviction
constituted a strike. He did not include a request for a certificate of probable cause.
                                      DISCUSSION
       Cotey’s notice of appeal limits the issues that we may address because section
1237.5 precludes an appeal from the judgment entered after a guilty plea unless the
defendant applies for, and the trial court grants, a certificate of probable cause. Without a
certificate of probable cause, any issues raised by the defendant generally are not
reviewable. (People v. Sem (2014) 229 Cal.App.4th 1176, 1187.)
       There are two exceptions to this general rule. A defendant does not need a
certificate of probable cause to appeal when the appeal addresses postplea matters not
challenging the plea’s validity, or when the issue is the lawfulness of a search or seizure
that was first contested in the trial court before the defendant entered a plea. (People v.
Mendez (1999) 19 Cal.4th 1084, 1096; Cal. Rules of Court, rule 8.304(b)(4).)
       In response to our June 20, 2014, letter, Cotey asserts three errors occurred in the
trial court. The first two, whether the crime to which Cotey pled should have been a
misdemeanor because the value of the property was less than $950 and the prosecutor
“threatened” Cotey’s constitutional right to a speedy trial, are not cognizable because

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they challenge the validity of the plea. The third error asserted by Cotey is that the record
is incomplete. We find no basis for this assertion.
       To the extent the appeal could be construed as addressing whether Cotey’s prior
conviction was a strike within the meaning of section 667, subdivision (d), the issue
stated in the notice of appeal, we find no merit to Cotey’s argument. The prior conviction
admitted by Cotey was a violation of section 487, subdivision (d)(2). This crime is
defined as grand theft of a firearm.
       Section 667, subdivision (d) defines a prior strike conviction as any offense
defined as a violent felony by section 667.5, subdivision (c), or any offense defined as a
serious felony by section 1192.7, subdivision (c). As applicable here, section 1192.7,
subdivision (c)(26) lists as a serious felony “grand theft involving a firearm.” Since
Cotey was convicted of grand theft of a firearm, his crime is a serious felony pursuant to
section 1192.7. (People v. Rodola (1998) 66 Cal.App.4th 1505, 1508.)
                                       DISPOSITION
       The judgment is affirmed.




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