Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCD219449 of San Diego County, David M. Gill, Judge.
IRION, J.
Hoang Minh Tran entered a negotiated guilty plea to one count of battery by gassing on a peace officer or an employee of a local detention facility. (Pen. Code, § 243.9, subd. (a)). In exchange for the guilty plea, the prosecution agreed to dismiss three other counts of battery by gassing and one count of resisting a peace officer by threat or violence (§ 69). The plea bargain called for a one-year prison term to run consecutive to the sentences imposed in three unrelated pending criminal cases.
Statutory references are to the Penal Code.
The trial court imposed a one-year consecutive sentence in accordance with the plea bargain.
Tran did not obtain a certificate of probable cause.
FACTS
On February 3, 2009, Deputy Sheriff Omar Ortega was assigned as a house guard for Tran, who was at UCSD Medical Center for hernia surgery. Tran had been on trial for aiding and abetting a jail escape when the surgery took place. Tran was chained to a hospital bed, and Ortega was sitting in a chair about three to four feet from Tran.
This was superior court case No. SCS223842, which is the subject of appeal No. D055728 in this court.
Tran said: "Beaner, go back to Mexico." Tran spat in Ortega's face and challenged the deputy to a fight. Tran's spit hit Ortega in the eye. Tran also said: "Come on, do something you fucking faggot, come over here." "I don't care if you're a witness, " Tran told Ortega, who was a prosecution witness in the jail escape trial.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether Tran's guilty plea was constitutionally valid; (2) whether Tran's presentence credits should be recalculated under the amendment to section 4019, which became effective on January 25, 2010; and (3) whether the trial court abused its discretion by imposing a consecutive sentence.
We asked appellate counsel and the Attorney General's office to submit letter briefs on this issue.
We granted Tran permission to file a brief on his own behalf. He has responded.
Tran claims that he was innocent of battery by gassing. However, Tran's guilty plea constituted an admission of every element of the offense and precludes any challenge to the sufficiency of the evidence on appeal. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; see also People v. Wallace (2004) 33 Cal.4th 738, 750.)
Tran also complains he was coerced into pleading guilty even though he was innocent of the crimes. Because Tran did not obtain a certificate of probable cause, he cannot challenge his guilty plea. Section 1237.5 precludes consideration of any challenge to a guilty plea on appeal absent a certificate of probable cause. (See People v. Buttram (2003) 30 Cal.4th 773, 781-782; People v. Panizzon (1996) 13 Cal.4th 68, 76.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no other reasonably arguable appellate issue. Competent counsel has represented Tran on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.
" '[G]assing' means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substance or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes." (§ 243.9, subd. (b).)
In his letter brief, appellate counsel pointed out that in superior court case No. SCD216674, which was the subject of a recent nonpublished opinion by this court (People v. Tran (July 13, 2010, D055700), counsel successively moved below to have additional presentence credits awarded under the revised section 4019. Section 4019 does not apply to the instant case since the trial court did not grant actual jail time credit here; the actual jail time credits, which underlie section 4019 credits, were awarded in superior court case No. SCD216674. (See § 2900.5, subd. (b).) The section 4019 issue is moot.