Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF133294 Michael B. Donner, Judge.
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Pursuant to a negotiated disposition, defendant and appellant Stephen Joseph Lemieux pled guilty to four counts of aggravated sexual assault of a child under 14 years of age and 10 or more years younger than defendant (Pen. Code, § 269, subd. (a)(4)). In exchange, the trial court dismissed four other charges of aggravated sexual assault of a child, as well as a dual victim allegation (§ 667.61, subd. (e)(5)). The parties stipulated that a factual basis for the plea was obtained from the preliminary hearing. The court sentenced defendant to the agreed-upon term of 30 years to life.
All further statutory references will be to the Penal Code.
Defendant filed a notice of appeal indicating the appeal was based on the sentence or other matters occurring after the plea. He also challenged the validity of the plea and requested a certificate of probable cause on the ground of ineffective assistance of counsel. Defendant’s request for a certificate of probable cause was denied. We dismiss.
FACTUAL BACKGROUND
This appeal is from a guilty plea. The parties stipulated that a factual basis could be obtained from the preliminary hearing. In or about the year 2004 defendant twice committed aggravated sexual assault on John Doe, a child who was under the age of 14 years and who was 10 years or more younger than defendant. (§ 269, subd. (a)(4).) In or about the year 2004 defendant also twice committed aggravated sexual assault on Jane Doe, a child who was under the age of 14 years and who was 10 years or more younger than defendant. (Ibid.)
DISCUSSION
Dependant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case and three potential arguable issues: 1) whether defendant’s plea was constitutionally valid; 2) whether defense counsel was ineffective for allegedly improperly influencing defendant to enter into a plea bargain rather than fight his case; and 3) whether the one strike law (§ 667.61) is unconstitutional on its face under the Eight Amendment to the U.S. Constitution proscription against cruel and unusual punishment. Counsel has also requested this court to undertake a review of the entire record. We have conducted an independent review of the record and find no arguable issues.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. He claims he was deprived of effective assistance of counsel because: 1) his trial counsel failed to notify the defense witnesses that the trial was starting; and 2) he failed to call a single expert witness for the defense. Defendant also lists a myriad of allegations as to what his trial counsel told him, including that his (counsel’s) office could not afford an expert witness, there was no evidence of sexual assault, and defendant was going to win at trial. Then, defense counsel changed his mind and told defendant to take the prosecutor’s deal. Defense counsel allegedly said he was not going to question the purported victims because it would make him (counsel) look bad in court, and the jury would “believe crying children on the stand before they would believed [defendant].” Defendant claims he signed the plea agreement only because he was convinced by defense counsel that his case was hopeless. In support of his personal brief, defendant attached a letter from someone named Lauraine Lowe, essentially echoing his claims.
Section 1237.5 states, in part, as follows: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable, constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
Defendant filed a notice of appeal that contained a brief statement in which he simply stated “his attorney did not represent him adequately, witnesses were never called on his behalf, and he was forced to take this deal.” The trial court denied the request for certificate of probable cause. “[W]here, as here, a certificate of probable cause has been denied, the appeal is not operative and the denial of the certificate must be reviewed by writ of mandate.” (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) Defendant did not challenge the denial by way of writ of mandate. Thus, the appeal must be dismissed. (Id. at pp. 1188-1189; see also, People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
DISPOSITION
The appeal is dismissed.
We concur: RICHLI J. KING J.