Opinion
H033461
6-26-2009
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ERNEST DOMINGUEZ, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Daniel Ernest Dominguez pleaded no contest to one count of assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (c)) and admitted 10 prior strike convictions (§ 667, subds. (b)-(i)) and five prior serious felony convictions (id., subd. (c)). The trial court struck the 10 strike priors in the interests of justice (§ 1385, subd. (a)) and sentenced defendant to the lower term of three years for the assault plus five years for each of the serious felony priors for a total of 28 years in prison.
Further code references are to the Penal Code.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.
I. FACTUAL BACKGROUND
The factual background is taken from the transcript of the preliminary hearing.
On June 6, 2007, San Jose Police Officer Jose Rodriguez responded to a call reporting a disturbance at a check cashing store in downtown San Jose where defendant had been screaming at patrons. Rodriguez found defendant behind the building watering the side of the building with a garden hose. Rodriguez directed defendant to put the hose down. When defendant failed to do so, a scuffle ensued, during which Rodriguez felt a blow to his chest. He saw a small, three-inch, screwdriver in defendants hand. Rodriguez deflected a second blow then punched defendant in the face. When defendant continued to resist, Rodriguez shot him with a taser.
II. DISCUSSION
Absent a certificate of probable cause, this appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (§ 1237.5, subd. (a).) The appeal may be based upon matters that arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4).) With that limitation in mind, we have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having done so, we conclude that there is no arguable issue on appeal.
In a petition for writ of habeas corpus, which this court previously ordered considered with the appeal, defendant argues that he received ineffective assistance from his appointed attorney when she advised about the consequences of pleading guilty or no contest. We have disposed of the habeas petition by separate order filed this day.
III. DISPOSITION
The judgment is affirmed.
We concur:
Rushing, P.J.
Elia, J.