Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 07CF1926, Kazuharu Makino, Judge.
Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
On August 16, 2007, Gustavo Rivera pled guilty to vehicular taking with a prior vehicular taking, one count of grand theft auto with a prior for the same offense, and one count of receiving a stolen vehicle with a prior for the same offense. He also admitted a prior offense for which he served time in a state prison (Pen. Code, § 667.5), which would have the effect of adding a year to his sentence, and a prior strike offense (Pen. Code, § 667, subds. (d) & (e)(1)) that could double his sentence. His understanding with the court was that in exchange for this plea, he would receive a state prison sentence of four years (a low term of two years for vehicular taking, doubled because of his strike prior), less than half the time he could have received if convicted, which the court computed at nine years.
In executing this agreement, Rivera was represented by counsel and informed of his constitutional rights. The consequences of his plea, including the sentence he would receive, were explained to him. The nature of the offense was explained to him in plain English; he initialed and signed a form that described the offense clearly: “In Orange County, California, on 4-9-07, I did willfully, unlawfully take, steal, and receive a 2005 Chevy Silverado pickup without the consent of the owner and knowing it was stolen.” He waived his constitutional rights and entered a plea of guilty to the vehicular taking alleged in count one and the prior upon which he was sentenced. He also waived any right to appeal: “Appeal waiver. I understand I have the right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including motions to suppress evidence brought pursuant to Penal Code section 1538.5. I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.”
Rivera nonetheless filed an appeal, and we appointed counsel to represent appellant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court he could find no issues to argue on appellant’s behalf. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Rivera’s lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Rivera would prevail, but only issues upon which he might possibly prevail.
We have examined the record and found no arguable issue. While Rivera’s case was routine and its handling required little time or transcript, a review of the hearing at which he pled guilty discloses no irregularities whatsoever. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the appellate system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual. Rivera did not obtain a certificate of probable cause from the trial court because there was no probable cause for an appeal upon which the trial court could have based such a certificate. That left him – at best – with the right to appeal only his sentence or other matters that occurred after his plea. And the waiver of appeal he filed relinquished any right to appeal from any legally authorized sentence contemplated by the plea agreement. Counsel has been unable to identify any legal issue circumscribed by these very narrow parameters, and our review has been equally unsuccessful. Rivera was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from appellant, so apparently he is as unable to imagine a basis for appeal as everyone else who has looked at this record.
The judgment is affirmed.
WE CONCUR:
MOORE, J., IKOLA, J.