Filed 1/7/15 P. v. Pearce CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C072577

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM036747)

         v.

NATHAN RICHARD PEARCE,

                   Defendant and Appellant.




         Defendant Nathan Richard Pearce appeals following his sentence to county jail
pursuant to a plea agreement. He contends the sentence violated the plea agreement and
his right to due process because it included enhancements for prior prison terms that had
been stricken under the agreement. Because this contention attacks the validity of the
plea and defendant did not obtain a certificate of probable cause, we dismiss the appeal.




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                    FACTUAL AND PROCEDURAL BACKGROUND
       We omit the facts of defendant’s offenses, as they are not relevant to the only issue
raised on appeal.
       In July 2012 a complaint deemed an information filed in Butte County Superior
Court charged defendant with two felonies: false personation (count 1; Pen. Code,
§ 529)1 and possession of a controlled substance (count 2; Health & Saf. Code, § 11377,
subd. (a)). The information alleged as to both counts that defendant had suffered five
prior prison terms. (§ 667.5, subd. (b).) It enumerated the underlying convictions as
follows: (1) Case No. CM024757 -- convicted on June 15, 2006, in Butte County
Superior Court of violating section 496, subdivision (a); (2) case No. 6219890 --
convicted on March 1, 2001, in Placer County Superior Court of violating Vehicle Code
section 10851, subdivision (a); (3) case No. CM014428 -- convicted on September 6,
2000, in Butte County Superior Court of violating section 496, subdivision (a); (4) case
No. CM013461 -- convicted on September 6, 2000, in Butte County Superior Court of
violating section 496, subdivision (a); and (5) case No. CM031726 -- convicted on
April 22, 2010, in Butte County Superior Court of violating Vehicle Code section 2800.2,
subdivision (a).2
       On August 9, 2012, defendant was arraigned on the information. On the same
date, he pleaded no contest to count 1 and admitted three prior prison terms, as we
explain more specifically below.
       Paragraph 3(a) of the written plea agreement states: “I also admit the following
enhancement(s)/prior conviction(s) with which I am charged . . . : Butte Superior Court



1      Undesignated statutory references are to the Penal Code.
2      On the copy of the information in the record, alleged convictions 1, 3, and 5 bear
handwritten checkmarks. Those alleged convictions correspond to the three prior prison
terms defendant admitted in the written plea agreement and in open court.

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cases as follows: 1) CM024757, 6/15/06, § 496(a) VC [sic]; 2) CM014428, 9/6/00,
§ 496(a) PC; [and] 3) CM031726, 4/22/10, § 2800.2(a) VC.” Paragraph 7 of the
agreement states: “I have not been induced to enter the above plea(s) [and admission(s)]
by any promise or representation of any kind, except . . . : Dismiss counts not plead [sic]
@ #3, hereinbefore[;] Strike special allegations not plead [sic] @ #3(a), hereinbefore.”
(Italics added.) Paragraph 17 of the agreement states that defendant could receive a
maximum sentence of six years in “State/County Prison.”3 Paragraph 29 stated that a
Harvey4 waiver applied to any dismissed or stricken charges or allegations. Defendant
initialed all of these paragraphs.
       At the change of plea hearing, defense counsel stated: “He’s going to admit to
three prior prison terms. Those are . . . set forth in the plea form.” (Italics added.) The
prosecutor echoed this remark. The trial court then asked defendant about each prior
prison term listed on the plea form and obtained his admission of each. After accepting
defendant’s plea, the court stated: “There are two prior prison terms stricken.” Neither
defendant nor his counsel asserted that defendant had actually served only three prison
terms, rather than the five that were alleged in the information.
       The probation report recommended an aggregate county jail term of six years,
including three years (the upper term) on count 1 and three years consecutive for the


3       The offense of false personation, which defendant admitted (count 1), is
punishable by a sentence of “imprisonment in a county jail not exceeding one year, or
imprisonment pursuant to subdivision (h) of Section 1170[] [i.e., 16 months two years, or
three years].” (§ 529, subd. (b).) The offense of possession of a controlled substance
under Health and Safety Code section 11377, which was stricken (count 2), is punishable
in the same manner. (Health & Saf. Code, § 11377, subd. (a).) A defendant’s sentence
must be enhanced by one year for every prior prison term; here, five were alleged and
three admitted. (§ 667.5, subd. (b).) Thus, the six-year lid under the plea agreement
might have been calculated in several different ways, and the record does not show how
the parties arrived at it.
4      People v. Harvey (1979) 25 Cal.3d 754.

                                              3
three admitted prior prison terms. The report attached defendant’s “Criminal Record
Summary,” which showed the following as to defendant’s prior felony convictions and
prison terms:
       In Butte County case No. CM013461 (§ 496, subd. (a)) (not admitted by defendant
in the plea agreement or at the change of plea hearing), defendant was sentenced on
October 11, 2000, to 36 months of probation, including 120 days in jail. After his first
violation of probation, on November 22, 2000, probation was reinstated with 270 days in
jail and a treatment program. After his second violation of probation, on April 25, 2001,
probation was revoked and defendant was placed in “CRC pursuant to § 3051 W&I.” On
March 27, 2002, criminal proceedings were reinstated and defendant was sentenced to
two years eight months in prison “[c]onsecutive with CM[]014428.”
       In Butte County case No. CM014428 (§ 496, subd. (a)) (admitted by defendant in
the plea agreement and at the change of plea hearing), defendant was also sentenced on
October 11, 2000, to 36 months of probation, including 120 days in jail. After his first
violation of probation, on November 22, 2000, probation was reinstated with a treatment
program. After his second violation of probation, on April 25, 2001, probation was
terminated and defendant was placed in “CRC pursuant to § 3051 W&I.”
       In Placer County case No. 6219890 (Veh. Code, § 10851, subd. (a)) (not admitted
by defendant in the plea agreement or at the change of plea hearing), on March 1, 2001,
defendant was sentenced to two years in prison. Thereafter, he was repeatedly returned
to prison for parole violations, until he discharged parole on August 22, 2005.
       In Butte County case No. CM024757 (§ 496, subd. (a)) (admitted by defendant in
the plea agreement and at the change of plea hearing), on June 15, 2006, defendant was
sentenced to 36 months of probation, including 220 days in jail. On February 15, 2007,
his probation was terminated and he was sentenced to two years in prison. Thereafter, he
was repeatedly returned to prison for parole violations, the last time on May 1, 2009.



                                             4
       In Butte County case No. CM031726 (Veh. Code, § 2800.2, subd. (a)) (admitted
by defendant in the plea agreement and at the change of plea hearing), on April 22, 2010,
defendant was sentenced to four years in prison. On November 22, 2011, he was released
on postrelease community supervision.
       At sentencing, the trial court noted that defendant had made a motion to represent
himself, but defendant then asked to withdraw the motion and the court granted his
request. The court imposed an aggregate term of five years in county jail, consisting of
two years (the middle term) on count 1 and three years consecutive for the three admitted
prior prison terms. Neither defendant nor his counsel raised any objection to the
sentence.
       Defendant thereafter filed a pro se writ petition in the trial court, asserting: “Trial
court imposed unlawful special allegation prior prison terms.” According to defendant,
although he had five prior felony convictions, three of them (those in case Nos.
CM013461, CM014428 & 6219890) were punished with a single prison term; thus he
served only three prior prison terms altogether. Therefore, when the trial court struck two
prior prison term allegations as part of the plea bargain, only one prior prison term
remained, and only a one-year enhancement could lawfully be imposed.
       In support of defendant’s writ petition, he attached two exhibits: “Exhibit A,”
consisting of the probation report, the “Criminal Record Summary,” and his own
statement to the probation department, which asserted that he had served three prison
terms; and “Exhibit B,” a copy of the page of the information alleging his prior prison
terms with his own handwritten annotation asserting that his five alleged prior
convictions were served as three prison terms. He did not explain how he thought the
Criminal Record Summary or the probation report assisted his argument. Nor did he
explain why he had never presented his view of these matters to the trial court before the
court imposed sentence.



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         The trial court denied the writ petition, finding: “Plea form does not support
allegations.”
         Defendant filed timely notice of appeal. He did not obtain a certificate of probable
cause.
                                        DISCUSSION
         Defendant contends, as in his writ petition, that he served three prior prison terms,
not five, as alleged in the information; thus, when the trial court struck two prior prison
terms under the plea agreement, the court should have enhanced his sentence by only one
year for the one remaining prior prison term. Therefore, according to defendant, we
should remand the matter with directions that the trial court give him “specific
performance” of the plea agreement -- i.e., a total sentence of three years, not five.
         We requested supplemental briefing from the parties as to whether defendant’s
contention amounted in substance to an attack on the validity of the plea, which may not
be brought without a certificate of probable cause. (§ 1237.5, subd. (b); People v.
Panizzon (1996) 13 Cal.4th 68, 76.) Having considered the parties’ original and
supplemental briefs, we conclude that defendant, in fact, seeks to attack the validity of his
plea. Since he did not obtain a certificate of probable cause, we dismiss the appeal.
         The written plea agreement stated that defendant’s maximum possible prison
sentence, as a consequence of admitting one count and three prior prison terms, was six
years. The trial court sentenced defendant to five years, including three years for the
prior prison terms defendant admitted under the plea agreement. Neither at the time of
entry of plea nor at the time of sentencing did defendant or his counsel inform the court
that defendant believed he had served only three prison terms, so that the striking of two
terms under the plea agreement left only one unstricken term. Thus, that alleged belief
on defendant’s part was not part of the plea agreement’s express terms and conditions,
which he signed and which he said in open court he understood and accepted.



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       Defendant now asserts that because the plea agreement struck two of his three
actual prior prison terms, there was only one “cognizable” prior prison term that could be
applied to his sentence. In other words, two of the three years added to his sentence for
prior prison term enhancements could not lawfully have been imposed under any
circumstances. This argument challenges the authority of the trial court to impose the
sentence it did, which was within the terms of the plea agreement on its face -- and, as to
the enhancements for prior prison terms, mandatory. In other words, though purporting
to attack his sentence, defendant really asserts that the plea agreement itself necessarily
entailed the unlawful imposition of mandatory sentence enhancements for nonexistent
prior prison terms. This is an attack on the validity of the plea, which defendant may not
bring without a certificate of probable cause. (§ 1237.5, subd. (b); People v. Panizzon,
supra, 13 Cal.4th at p. 76.)
       Defendant attempts to distinguish Panizzon on the ground that, unlike in Panizzon,
here there was no “set agreed-upon sentence.” But there was an agreed-upon sentencing
lid, which included mandatory enhancements for all prior prison terms not stricken under
the agreement -- i.e., the three prior prison terms defendant admitted by his plea. Thus,
defendant’s attempt to distinguish Panizzon fails. (See People v. Cuevas (2008) 44
Cal.4th 374, 376-377; People v. Shelton (2006) 37 Cal.4th 759, 763.)
                                         DISPOSITION
       The appeal is dismissed.

                                                         NICHOLSON             , J.

We concur:


      BLEASE                   , Acting P. J.


      HULL                     , J.



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