Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07906702. Arlan L. Harrell, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., Kane, J.
PROCEEDINGS
Appellant, Albert Rodriguez Hernandez, was charged in a criminal complaint filed August 28, 2007, with sodomy by force (Pen. Code, § 286, subd. (c)(2), count one), felony corporal injury to spouse, cohabitant or a child’s parent (§ 273.5, subd. (a), counts two & five), feloniously making a criminal threat (§ 422, count three), and assault with a deadly weapon (§ 245, subd. (a)(1), count four). On October 2, 2007, the complaint was amended to add two prior serious felony convictions within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b) through (i) & 1170.12, subds. (a) through (d)) and five prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, statutory references are to the Penal Code.
On October 2, 2007, Hernandez entered into a plea agreement and executed a felony advisement, waiver of rights, and plea form. Hernandez would admit counts two and three as well as two prior serious felony allegations. Under the agreement, the court would exercise its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike both prior serious felony allegations and sentence Hernandez to the midterm of three years.
The court advised Hernandez of, and Hernandez waived, his constitutional rights pursuant to Boykin/Tahl. The court further advised Hernandez of the consequences of his plea. The parties stipulated to a factual basis for the plea. Hernandez admitted the two prior serious felony allegations. The court granted the prosecutor’s motion to dismiss the remaining allegations.
The form set forth appellant’s rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
In the change of plea form, Hernandez admitted causing corporal injury and making criminal threats against his spouse on August 25, 2007.
At the sentencing hearing on November 2, 2007, the court indicated it received communication from Hernandez seeking a Marsden hearing and requesting to withdraw his plea. When asked what he wished to do, Hernandez stated he wanted to proceed with the case and his sentencing. Hernandez said he was satisfied with his defense counsel. Hernandez later said he did not wish to withdraw his plea at that time, then said he wanted to withdraw his plea. The court granted a recess for Hernandez to discuss the matter with counsel. Hernandez expressly stated he did not wish to withdraw his plea and wanted to proceed with sentencing.
People v. Marsden (1970) 2 Cal.3d 118.
The court exercised its discretion to strike the two prior serious felony allegations. The court sentenced Hernandez to the midterm of three years on count two and to a concurrent sentence of two years on count three. The court granted applicable custody credits and ordered Hernandez to pay a restitution fine.
Hernandez’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Hernandez was advised he could file his own brief with this court. By letter on March 24, 2004, we invited Hernandez to submit additional briefing. Hernandez replied with a letter asserting he was innocent of the allegations against him and that the victim suffers from a mental illness.
FACTS
According to the probation report, Hernandez was in a “common-law” relationship with the victim for 14 years. They have two children together. In August 2007, Hernandez pinned the victim down, sodomized her and bit her buttocks. On a later occasion that month, Hernandez held a sharp object to the victim’s eye and threatened to “stab [her] eye out.” When the victim tried to get her car keys from Hernandez, he called her a bitch and then slapped her several times in front of their child who was 12 at the time.
DISCUSSION
We initially note that the trial court denied Hernandez’s request for a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of his underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)
A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.) We therefore reject Hernandez’s contention that he did not commit the two offenses he admitted.
We noted Hernandez received the sentence he bargained for and that the remaining allegations were dismissed. After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.