Filed 11/26/13 P. v. Moore CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,                                   A138755
v.
                                                                     (Napa County
FINITO MURICE MOORE,
                                                                     Super. Ct. No.CR163702)
         Defendant and Appellant.


         This is an appeal following pleas of no contest. Appellate counsel has reviewed
the file in this case and has determined there are no meritorious issues to raise on appeal.
She has complied with the relevant case authorities, indicating People v. Wende (1979)
25 Cal.3d 436 and its progeny apply here. She has also notified defendant of his right to
file a supplemental brief. Defendant has filed a two-page letter brief indicating his
concern about the failure of his previous trial counsel and the court to advise him about
the strike consequences, collateral in nature, of his no contest plea to a felony violation of
Penal Code section 422 in 2007. Upon independent review of the record, we conclude
that no arguable issues are presented for review and affirm the judgment.
                                          STATEMENT OF FACTS
         On October 31, 2012, the Napa County District Attorney filed in the superior court
a complaint charging Finito Murice Moore with driving under the influence and driving
with a suspended license. (Veh. Code, §§ 23152, subds. (a) & (b), 14601.2, subd. (a).)
Sentence enhancements under Vehicle Code sections 23550 and 23550.5 were also
alleged, as well as a prior strike allegation pursuant to Penal Code section 667,

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subdivisions (b)–(i). On November 8, 2012, Moore turned himself in to the police. On
November 14, 2012, Moore pleaded not guilty to all counts and denied the allegations,
and was remanded into custody, with bail set at $100,000.
       A preliminary hearing was held on November 28, 2012 and when completed,
Moore was held to answer on the charges in the complaint. An information was filed
alleging the same offenses and allegations in the complaint. At a readiness conference on
January 30, 2013, Moore pled no contest to one count of driving under the influence of
alcohol (Veh. Code, § 23152, subd. (a)), admitted three prior convictions for driving
under the influence, and admitted a prior strike allegation. Counts two and three of the
information and all remaining allegations were dismissed by the prosecutor.
       On April 23, 2013, Moore filed a motion seeking an evidentiary hearing to
determine if a strike based on an April 7, 2007 plea to Penal Code section 422 (terrorist
threats) was constitutional. (People v. Coffey (1967) 67 Cal.2d 204 (Coffey).) Moore
maintained his prior plea was not a knowing and intelligible waiver of rights since he did
not understand at the time the offense could be a future strike. On May 7, 2013, the trial
court held the hearing and denied Moore’s application.
       At the end of the hearing, the court sentenced Moore to a term of imprisonment for
16 months, which it then doubled to 32 months based on the strike enhancement. The
court also imposed a restitution fine of $280 and a DUI fine of $4,134.
       On May 22, 2013, Moore filed a notice of appeal.
                               STATEMENT OF FACTS
       On October 5, 2012, Moore was stopped for running a red light at SR-29 and
American Canyon Road. The officer noticed when he spoke with Moore that defendant
had an odor of alcohol on his breath. Observed by the officer in the cup holder next to
Moore was a can of beer. Defendant acknowledged he had been drinking since 9:00 a.m.
Based on the officer’s professional experience and training, he suspected Moore was
operating his vehicle under the influence of alcohol. He asked defendant to take the field
sobriety test wherein Moore performed poorly. The preliminary alcohol screening tests
administered to Moore resulted in a blood-alcohol content of 0.247 and 0.249 percent.


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       When Moore entered his plea of no contest, he advised the court he wished to
further review the validity of his 2007 plea to Penal Code section 422. The court advised
him that if that plea was unconstitutional, the strike would be removed. The trial court
also fully advised Moore of his Boykin-Tahl rights. (Boykin v. Alabama (1969) 395 U.S.
238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).)
       On May 7, 2013, a hearing was held regarding the 2007 prior under Coffey, supra,
67 Cal.2d 204. Moore argued that plea was taken without defendant being advised there
could be strike consequences in the future. He was therefore not fully advised of the
consequences of his plea. He argued he did not make an intelligent and knowing waiver
of his rights. The district attorney responded that a “charge doesn’t become a strike
unless and until there is a [subsequent] felony conviction. So there is no necessity to
advise [defendant] of [the consequence].” The prosecutor argued a court is only
obligated to advise the accused of the direct consequences of his plea, not possible
enhancements like potential strikes.
       Moving papers filed in this matter indicate Moore entered his plea of no contest on
February 28, 2007. He was represented by counsel at the time. The Boykin-Tahl waiver
form was provided to the court. Also, Moore was specifically asked by the trial court
regarding his waiver of rights and he answered affirmatively. He specifically
acknowledged he understood what he was doing and had no questions regarding the
proceedings. At the time of the plea to a felony charge of Penal Code section 422, Moore
also entered a no contest plea to a misdemeanor violation of Vehicle Code section 23152.
       The trial judge in the instant case denied Moore’s request under Coffey. The court
relied on People v. Sipe (1995) 36 Cal.App.4th 468, 479, advising Moore a court does not
need to advise an accused of possible consequences of future behavior. Also, the court
noted a conviction for Penal Code section 422 has no effect on a person unless and until
he commits a new felony. Hence he need not be advised of the “Three Strikes” law.
                                       DISCUSSION
       Regarding case law pertaining to advising defendant that his felony plea to Penal
Code section 422 would be a strike, the courts distinguish between direct and collateral


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consequences of a no contest plea. Punishment for the offense pled to is a direct
consequence of the plea. However, a defendant need not be informed of the possible
range of penalties to the admitted charge if the sentence to be imposed has been agreed
upon as part of a plea bargain and the stipulated sentence is known by the defendant.
(Scroggins v. Superior Court (1977) 65 Cal.App.3d 873.)
       A trial court’s obligation to advise the defendant of the direct consequences of a
no contest plea is not constitutionally compelled. It arises from a judicially created rule
of criminal procedure. (People v. Walker (1991) 54 Cal.3d 1013, 1022, overruled on
other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183.) It follows from this
notion, that any error in accepting a plea without such admonitions of potential
consequences may cause the plea to be set aside only if it is reasonably probable the
defendant would have entered a different plea had he been advised. (People v. McClellan
(1993) 6 Cal.4th 367, 378–381; In re Moser (1993) 6 Cal.4th 342, 351–352.) Also, any
error is waived absent a timely objection. (People v. McClellan, at pp. 377–378; People
v. Walker, at p. 1023.) In the instance of the plea by Moore in 2007, defendant was not
advised at the time of the plea he was pleading to a strike. This was not constitutionally
required he be so advised. While it may have been the better practice to indicate a plea to
Penal Code section 422 potentially could be a strike prior, there appears no constitutional
or judicial mandate such take place. The impact of the prior only has significance
because of the voluntary conduct by Moore on October 5, 2012. Also in his Coffey
challenge in the instant case, defendant provides no declaration he would have refrained
from pleading no contest to the terrorist threat charge and driving under the influence
offense had he known the section 422 offense would be a strike. He omits the foundation
required by McClellan and Moser.
       In this case, defendant entered a plea of no contest to a felony and admitted
certain enhancements. Neither Moore nor his counsel petitioned the court to certify the
sentencing hearing for any legal reason and the record reflects there is no certificate of
probable cause included in the judgment. Appellate review of noncertified issues after a



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sentencing is limited. (Pen. Code, § 1237.) Defendant was ably represented by trial
counsel below. We find nothing that merits upsetting the result in this matter.
       The conviction here is affirmed.




                                                 _________________________
                                                 Dondero, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Sepulveda, J.*




*
  Retired Associate Justice of the Court of Appeal, First Appellate District assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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