Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F08743
BLEASE, Acting P. J.
On August 28, 2007, defendant, 16-year-old Lance Lang ordered pizza from Royal Pizza, using his cell phone and providing his number. Defendant requested delivery to 3041 Mills Park Drive, number 38. Upon delivery, defendant held a gun to the pizza delivery driver’s head and demanded his money. The driver gave defendant $65 and the pizza.
On August 29, 2007, defendant ordered pizza from Mountain Mike’s Pizza, again using his cell phone and again providing his number. Defendant requested delivery to a different address, 3545 Mather Field Road, number 109. Upon delivery, defendant pointed a gun at the pizza delivery driver and demanded his money. The driver gave defendant approximately $400 and the pizzas.
Law enforcement traced the robberies to defendant through the cell phone number he provided to the two pizza establishments. After waiving his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], defendant admitted that he committed both robberies and had used his cell phone to order the pizzas for delivery.
Tried as an adult, defendant entered a negotiated plea of guilty to two counts of second degree robbery (Pen. Code, § 211; undesignated section references are to this code; counts one and two) and admitted an enhancement for personal use of a firearm in connection with count two (§ 12022.5, subd. (a)) in exchange for a stipulated state prison sentence of the low term of two years for count two, a consecutive three-year enhancement for gun use and a concurrent midterm of three years for count one. The court sentenced defendant accordingly, ordering housing at the Division of Juvenile Facilities until the age of 18 years, and then transfer to state prison to serve the remainder. The court dismissed the remaining gun use allegations on the prosecutor’s motion, awarded 90 days of credit and imposed a $1,000 restitution fine, a corresponding $1,000 parole fine, and victim restitution ($65 to Royal Pizza; $400 to Mountain Mike’s).
Defendant appeals. His request for a certificate of probable cause (§ 1237.5) 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 the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief. He complains that his sentence is “harsh.” He claims he was not treated fairly. He claims that his grandmother had spoken with the ACLU which “said that they did not see why I would be tried as an adult and that my sentence sound[ed] cruel for a juvenile.” Defendant states that the robberies were his first offenses, that he does not have a “bad record” and that he was not involved with gangs, drugs or alcohol. He claims that other juveniles with the same offenses but more counts, juveniles with “worse records than [defendant],” and juveniles involved in gangs, drugs or alcohol, have been “charged as . . . juvenile[s]” and “go to camp or a juvenile program . . . .” Defendant “feel[s] that [he] did not get a chance and that five years and two adult strikes is too much for a juvenile” like him. He asserts he never hurt anyone, never intended to hurt anyone and did not use a real firearm, claiming it was a “small plastic BB gun.” He expresses remorse and acknowledges his mistake. He suggests that the law allowing juveniles to be tried as adults be changed. He also suggests that the judge choose the sentence rather than the prosecutor who is “out to get people and give harsh sentences.” Defendant asks for a “second chance.”
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Issues which may be raised without a certificate of probable cause include: “(1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 74-75 (Panizzon).)
Although sentencing issues normally fall within the second category and require no certificate of probable cause, “a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself” and thus requires a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 79.)
In Panizzon, supra, 13 Cal.4th 68, the defendant agreed to enter a plea of no contest to several felonies and agreed to a sentence of life with the possibility of parole plus 12 years. (Panizzon, supra, at p. 73.) Defendant, without obtaining a certificate of probable cause, filed a notice of appeal arguing his sentence violated the federal and state constitutional prohibitions against cruel and unusual punishment. (Id. at p. 74.) Panizzon held that defendant’s appeal must be dismissed because he challenged the validity of his plea and was barred by his failure to obtain a certificate of probable cause. (Id. at pp. 78, 89.)
Here, defendant entered a negotiated plea in exchange for a stipulated state prison sentence of five years. With respect to defendant’s arguments that his sentence is harsh and he was not treated fairly and should have been tried as a juvenile, defendant is attacking the validity of his plea and these claims are barred because he did not obtain a certificate of probable cause. (§ 1237.5; Panizzon, supra, 13 Cal.4th at pp. 73, 78, 89.)
Even if defendant had obtained a certificate of probable cause, his claim that he did not use a real firearm is barred because a guilty plea “waives any right to raise questions regarding the evidence . . . .” (People v. Turner (1985) 171 Cal.App.3d 116, 125.) A defendant’s guilty plea “constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt.” (Ibid.) The plea “waives a trial,” “obviates the need for the prosecution to come forward with any evidence,” and “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt.” (Ibid.)
Defendant’s suggestion that the law allowing prosecution of juveniles as adults be changed is for the Legislature, not for this court on defendant’s appeal from his sentence. And in suggesting that the judge rather than the prosecutor should choose the sentence, defendant fails to recognize that he and the prosecutor agreed upon the sentence when they entered into the plea agreement.
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: NICHOLSON, J., BUTZ, J.