Filed 9/8/15 P. v. Hardin CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A142014
v.
MARIO ARMONDO HARDIN, (Sonoma County
Super. Ct. No. SCR628073)
Defendant and Appellant.
INTRODUCTION
Defendant Mario Armondo Hardin appeals from the judgment in one of two
separate matters that were part of a single negotiated disposition. Defendant’s court-
appointed counsel has filed a brief seeking our independent review of the record,
pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any
arguable issues for review. Due to defendant’s entry of a no contest plea and the
subsequent denial of a certificate of probable cause, pursuant to California Rules of
Court, rule 8.304(b) and Penal Code section 1237.5,1 the issues we may consider on
appeal are limited to sentencing issues that do not implicate the validity of the plea.
Defendant has been informed of his right to file supplemental briefing, and he has not
done so. After our independent review of the record, we find no errors or other issues
requiring further briefing, and we affirm.
1
All further unspecified statutory references are to the Penal Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
Case No. SCR628073
On December 21, 2012, in case number SCR628073 (the vehicle case), defendant
was charged with violating (1) section 666.5, subdivision (a), by unlawfully taking and
driving someone’s vehicle, a felony, having previously been convicted of violating
Vehicle Code section 10851; (2) Vehicle Code section 10801, running a chop shop as
defined in Vehicle Code section 250, a felony; (3) section 496d, subdivision (a),
receiving a stolen vehicle, a felony; and (4) section 466, possessing tools to break and
enter a vehicle, a misdemeanor. The complaint also alleged that defendant had served a
prior prison term within the meaning of section 667.5, subdivision (b). The charges in
the vehicle case arose out of a probation search at defendant’s residence where officers
found parts of a vehicle that had been reported stolen.2
On April 3, 2013, defendant entered into a change of plea agreement under
section 1192.5 pursuant to which he pled no contest to count 1, the felony violation of
section 666.5, subdivision (a); the remaining charges and prison prior allegation were
dismissed. The agreement provided for a middle term of three years, half of which would
be served in custody and half under mandatory supervision. In the change of plea form,
defendant acknowledged and waived his constitutional rights to a trial, to confront and
cross-examine witnesses, to present evidence, to subpoena witnesses, not to incriminate
himself, and to have a trial by court or by jury. He acknowledged his right to be
represented by an attorney at all stages of the proceedings and that he had adequately
discussed the case with his attorney. He waived his right to a preliminary hearing. The
agreement included a “Cruz waiver”3 providing, inter alia, that failure to appear for
sentencing would void the agreement and defendant would not be allowed to withdraw
his plea. The trial court confirmed that defendant had executed and understood the form,
and accepted his plea.
2
The facts from case number SCR628073 are contained in a May 23, 2013,
presentence report describing a probation search on December 17, 2012.
3
People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 (Cruz).
2
On May 30, 2013, defendant failed to appear for sentencing.
Case No. SCR635729
Defendant was thereafter arrested and charged in case number SCR635729 (the
drug case). The charges arose out of a June 11, 2013, traffic accident involving
defendant in which he attempted to hide suspected methamphetamine.4
On June 21, 2013, defendant entered into another change of plea agreement
pursuant to section 1192.5. The agreement resolved the new case and the vehicle case.
In the agreement, defendant pleaded no contest to a violation of Health and Safety Code
section 11377, subdivision (a), felony possession of methamphetamine, and he admitted
an on-bail enhancement pursuant to section 12022.1. Defendant agreed to a sentence of
five years and eight months under section 1170, subdivision (h). This included the three-
year middle term sentence from the vehicle case, a consecutive eight month sentence for
the drug conviction and a consecutive two year sentence for the on-bail enhancement.
The sentence would be split, with four years in custody and one year, eight months on
mandatory supervision. The change of plea form contained identical advisements to the
form filed on April 3, and was identically executed by defendant. On June 21, the trial
court confirmed that defendant had executed and understood the form. The trial court
accepted defendant’s pleas.
Post Plea and Sentencing Proceedings
On August 1, 2013, after defendant argued that he could not have stolen a car on
December 17, 2012, because he was in custody at that time, the complaint in the vehicle
case was amended to reflect the correct date of the theft as July 1, 2012, and to correct the
name of the victim.
On August 19, 2013, defendant filed a motion to withdraw his no contest pleas in
both cases. He raised several arguments, including that he was in custody when a third
party delivered the stolen vehicle to his house and that he did not know the vehicle was
4
The facts in case number SCR635729 are taken from the July 29, 2013,
presentence report.
3
stolen. He argued that the drug case should have been charged as a misdemeanor with no
on-bail enhancement. He also argued that both pleas were invalid because the vehicle
case alleged the wrong date of offense and the wrong legal owner of the vehicle. The
prosecution opposed the motion. On September 11, 2013, the trial court denied
defendant’s motion, ruling that despite the mistakes in the complaint, defendant
understood the charges to which he was pleading and there was no good cause to allow
him to withdraw his pleas.
Thereafter, the public defender was relieved and private counsel appeared for
defendant. In November 2013, new counsel filed a motion to reconsider the denial of the
motion to withdraw the plea in the vehicle case. Defendant submitted his declaration and
declarations of prospective witnesses whose cooperation defendant previously believed
he would not be able to obtain. The prosecutor opposed the motion, arguing that the new
evidence from witnesses previously known to defendant was not good cause or grounds
for reconsideration. The trial court denied the motion, ruling that defendant had been
aware of the potential defenses and witnesses at the time of his plea and the witnesses’
recent willingness to cooperate was not sufficient grounds to undo the plea.
On December 3, 2013, the court issued a temporary release order so defendant
could visit his father who was dying in the hospital. Defendant was released for four
hours to the custody of Adam Villagomez of the Indian Health Clinic. He was ordered to
remain at all times with Villagomez, to go directly from jail to the hospital and back with
no other stops, and to drug test upon his return.
In January 2014, prior to sentencing, the court issued two temporary release orders
so defendant could attend his father’s funeral. These orders also required him to return at
a certain time and remain with Villagomez; they did not specify drug testing. In court,
defendant admitted he returned late to the jail and tested positive for methamphetamine
after the funeral. Defendant acknowledged and waived his right to a hearing to determine
whether he returned late and tested positive for methamphetamine, including the rights to
confront witnesses, to present a defense, and to remain silent. He acknowledged that this
admission implicated the Cruz waiver in his plea agreement.
4
In March 2014, the court imposed sentence in both cases pursuant to section 1170,
subdivision (h). It sentenced defendant to a total of six years eight months: the upper
term of four years in the vehicle case plus consecutive terms of eight months for the
methamphetamine possession and two years for the on-bail enhancement in the drug
case. The court suspended the last six months of the sentence and placed defendant on
mandatory supervision.
Defendant filed a notice of appeal in the vehicle case in May 2014. He sought but
was denied a certificate of probable cause. Defendant did not file a notice of appeal in
the drug case.
In November 2014, defendant filed a petition for resentencing in the drug case
pursuant to section 1170.18, also known as Proposition 47, which was enacted after his
sentence.5 The prosecution agreed that defendant was entitled to relief. In December
2014, the trial court declared the possession conviction to be a misdemeanor and
maintained the consecutive eight-month sentence. The court struck the on-bail
enhancement as no longer supported by a subsequent felony. With good time, defendant
had 1,104 days of credit against his sentence.
DISCUSSION
The scope of this appeal is restricted by defendant’s no contest plea and the denial
of a certificate of probable cause. The only issues cognizable on appeal are “postplea
claims, including sentencing issues, that do not challenge the validity of the plea.”
(People v. Cuevas (2008) 44 Cal.4th 374, 379; People v. Brown (2010) 181 Cal.App.4th
356, 359-360.)
We have reviewed the entire record as required by People v. Wende, supra, 25
Cal.3d 436. Defendant was at all times represented by competent counsel who protected
his rights and interests. Before accepting defendant’s admissions and waivers pertaining
to violating the terms of his supervised release, the court made sure defendant understood
5
Proposition 47, “the Safe Neighborhoods and Schools Act,” was enacted by voter
initiative on November 4, 2014, and went into effect the next day. (§ 1170.18; People v.
Rivera (2015) 233 Cal.App.4th 1085, 1089.)
5
the constitutional rights he was waiving and the consequences of his admissions, in
particular that violating the Cruz waiver voided the sentencing agreement in the plea
bargain.
We see no error in the sentence. The trial court understood her sentencing
discretion, that defendant was “here basically for sentencing on an open plea.” The court
considered the recommendation of the probation department and the arguments of both
counsel. Defendant himself had an opportunity to be heard. The trial judge
acknowledged his argument and set forth her reasons for sentencing defendant to the
aggravated term of four years in the vehicle case and for suspending the final six months
of the sentence and placing defendant on mandatory supervision.
We conclude there are no arguable issues within the meaning of People v. Wende,
supra, 25 Cal.3d 436.
DISPOSITION
The judgment is affirmed.
6
_________________________
Miller, J.
We concur:
_________________________
Kline, P. J.
_________________________
Richman, J.
A142014, People v. Hardin
7