Opinion
F079912
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN DANIEL GONZALES, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F19900986)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Glenda S. Allen-Hill, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
INTRODUCTION
Pursuant to a plea agreement, appellant Jonathan Daniel Gonzales pled no contest to one count of violating Penal Code section 422, criminal threats, and admitted using a deadly weapon within the meaning of section 12022, subdivision (b)(1), in exchange for dismissal of other charges. Gonzales was sentenced to three years formal probation. He appealed without obtaining a certificate of probable cause. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
References to code sections are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
Gonzales and the victim had been in a relationship for 15 years and lived together. On February 6, 2019, Gonzales and the victim were arguing when Gonzales slapped the victim twice in the face and threw a ceramic bowl at the victim, hitting the victim in the stomach. Gonzales left the room and the victim called police.
Gonzales returned to the room where the victim was located, bringing with him a metal baseball bat. Gonzales threatened the victim, threw the victim to the floor, placed his knee on the victim's back, put the baseball bat under the victim's chin, and pulled the victim's head up and back. The victim fought back, and Gonzales grabbed a BB gun. He placed the barrel of the gun against the victim's eye socket and the baseball bat against the opposite side of the victim's head. Gonzales told the victim he "should shoot him in the eye and hit him with the bat."
Police arrived and located the bowl, baseball bat, and BB gun in the room. After being advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Gonzales admitted slapping the victim, throwing the ceramic bowl at him, and using the baseball bat and BB gun to further assault the victim.
On February 8, 2019, Gonzales was charged in count one with violating section 422, criminal threats, to which a section 12022, subdivision (b)(1) use of a deadly weapon enhancement was appended; in count two with corporal injury to a domestic partner, in violation of section 273.5, subdivision (a); and in count three with battery with bodily injury in violation of section 243, subdivision (e)(1).
On February 19, 2019, Gonzales signed a felony advisement, waiver of rights, and plea form. Gonzales agreed to plead no contest to the count one offense, criminal threats, and admit the appended allegation. In exchange for his plea, the other two counts would be dismissed, the parties agreed to a sentencing lid of 365 days of local custody, and no initial state prison, otherwise known as felony probation. Gonzales stipulated that the police reports provided a factual basis for his plea.
Defense counsel signed the attorney verification on the plea form, verifying that he had discussed the elements of the offenses with Gonzales, possible defenses, his constitutional rights, the terms of the plea agreement, and consequences of entering into the plea agreement.
The change of plea hearing was held on February 26, 2019. Prior to accepting Gonzales's plea, the trial court verified that Gonzales understood the plea agreement, understood and waived his constitutional rights, and understood the consequences of the plea agreement. The parties stipulated that the "crime reports" provided a factual basis for the plea. After Gonzales entered his no contest plea to count one and admitted the enhancement, counts two and three were dismissed.
On June 11, 2019, Gonzales filed a motion to withdraw his plea. Gonzales claimed that he did not truly understand the consequences of his plea. The hearing on the motion to withdraw the plea was held on August 8, 2019. The trial court denied the motion.
After denying the motion to withdraw the plea, the trial court proceeded to sentencing. The trial court imposed sentence in accordance with the plea agreement. Imposition of sentence was suspended for three years and Gonzales was placed on formal probation for three years. The trial court awarded 369 days of presentence credit, which meant no additional custodial time, and ordered Gonzales released on probation in this case. Terms and conditions of probation were specified, and various fines and fees imposed.
Gonzales had felony charges pending against him in another case. --------
Gonzales filed a pro. per. notice of appeal on September 5, 2019. No certificate of probable cause was sought or obtained.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on December 4, 2019. That same day, this court issued its letter inviting Gonzales to submit a supplemental brief. No supplemental brief was filed.
Gonzales pled pursuant to a plea agreement and did not obtain a certificate of probable cause. "A defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere,' unless he has obtained a certificate of probable cause. (§ 1237.5, subd. (b); see People v. Buttram (2003) 30 Cal.4th 773, 790 [§ 1237.5's purpose is 'to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted'].)" (People v. Cuevas (2008) 44 Cal.4th 374, 379.) "It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) "Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.] For example, 'when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was "part of [the] plea bargain." [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.' " (People v. Cuevas, at p. 379; People v. Buttram, at pp. 785-786.)
Accordingly, it is the general rule that when a specific sentence is an "integral part of the plea" agreement, a defendant may not challenge it on appeal without first obtaining a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 73; People v. Hester (2000) 22 Cal.4th 290, 295 [plea agreement for specified sentence constituted implicit waiver of defendant's right to contend sentence violated section 654].) This is because a specified sentence in a plea agreement "normally implies a mutual understanding of the defendant and the prosecutor that the specified [sentence] is one that the trial court may lawfully impose." (People v. Shelton (2006) 37 Cal.4th 759, 768.) A defendant's challenge to the specific sentence is "in substance a challenge to the validity of the plea." (Panizzon, at p. 76; People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Gonzales cannot challenge his plea or the plea agreement because he did not obtain a certificate of probable cause. The plea agreement called for no initial prison term, felony probation, and a lid on local custody of 365 days. The trial court awarded 369 days of presentence custody credit because Gonzales had remained in custody longer than anticipated prior to sentencing and had earned 369 days of credit.
The trial court had fundamental jurisdiction to impose the sentence it did under the plea agreement and Gonzales received the benefit of a more lenient sentence as part of a negotiated plea agreement.
After a review of the record, we find there are no arguable factual or legal issues.
DISPOSITION
The judgment is affirmed.