Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF009758A
BUTZ, J.Defendant Curtis Neil Kroll pleaded guilty to lewd conduct against a child (Pen. Code, § 288, subd. (a)) and admitted two prior strike convictions (§§ 667, subd. (d), 1170.12, subd. (b)), in exchange for an indicated sentence from the trial court that it would strike one of the prior strike convictions and sentence him to state prison for six years (the low term doubled) and an agreement that the remaining charge and enhancements would be dismissed. Subsequently, defendant brought a motion to withdraw his plea, and new counsel was appointed. Defendant’s motion was denied, and the trial court sentenced defendant in accordance with the plea agreement.
Undesignated statutory references are to the Penal Code.
According to a pretrial conference statement, which was later used in support of the factual basis for defendant’s plea, the offense involved defendant rubbing his nine-year-old daughter’s vaginal area and inserting his finger into her vagina.
Defendant appealed. His request for a certificate of probable cause was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, in which he claims: “My attorney... scared me into this plea[] by being so ill[-] prepared that I was convince[d] that I would definitely be found guilty.”
A certificate of probable cause is required for appellate review following a plea of guilty (§ 1237.5), unless the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity” (Cal. Rules of Court, rule 8.304(b)(4)(B)) or relates to the validity of a search or seizure (§ 1538.5, subd. (m)). Defendant’s request for a certificate of probable cause was denied by the trial court, foreclosing review on appeal of his claim that his plea was invalid. (See People v. Kelly (2006) 140 Cal.App.4th 560, 565.)
Defendant cites cases in which a defendant was prevented from filing a motion to withdraw his plea in the trial court and the appellate court remanded to allow the defendant to bring his motion even though no certificate of probable cause was obtained. (See, e.g., People v. Makabali (1993) 14 Cal.App.4th 847, 851; People v. Osorio (1987) 194 Cal.App.3d 183, 187.) These cases are inapposite, as defendant’s motion to withdraw his plea was filed and heard by the trial court. (See Osorio, at p. 187 [if motion to withdraw plea is filed and denied, certificate of probable cause is required because the plea is placed in issue].)
Defendant also cites numerous cases for the proposition that a defendant must be allowed to withdraw his plea if the plea bargain is violated or if the bargain requires the court to impose an illegal sentence. However, defendant’s only claim on appeal in this regard is that he was promised he would receive “[half] time credit for time served prior to sentencing.” There is no support in the record for defendant’s claim. To the contrary, the trial court expressly informed defendant prior to his guilty plea that he would be required to serve 85 percent of his sentence. Defendant’s claim that he was informed otherwise by various individuals is based on information not contained in the record and, thus, not subject to our consideration in this proceeding.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.