Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5060411-6
STEIN, Acting P. J.
Counsel for defendant Daniel W. Wesnidge has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents that defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.
Factual/Procedural Background
On June 13, 2006, defendant pleaded no contest to one count of driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)), one count of driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23153, subd. (b)) and one count of dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1).) Defendant also admitted to enhancement allegations of causing great bodily injury (Pen. Code, § 12022.7), causing bodily injury to more than one victim (Veh. Code, § 23558), and to having suffered two prior alcohol-related convictions within the previous 10 years (see Pen. Code, § 23566). There was a factual basis for the plea. A preliminary hearing established that defendant, with four passengers in his car, and after having stayed up all night, lost control of the car, with the result the car swerved into two pedestrians on a morning walk, propelling them over a guardrail and into a creek, causing them severe bodily injury. Defendant tried to talk one of his passengers into taking the blame for the accident, and at one point told the passenger that once he got out of jail he would kill the passenger if he didn’t take the blame. He also directed his passengers to say that another person—who wasn’t present—had been the driver. Field sobriety tests indicated defendant was under the influence of alcohol. His breath samples tested for a blood-alcohol level of .10 and .11.
Defendant was represented by counsel throughout the proceedings. He signed and initialed a plea form. The court accepted his plea only after questioning him and receiving assurance defendant had read the warnings on the form, understood the rights he was waiving by his plea and knew that he could receive a maximum sentence of nine years six months in state prison. The court sentenced defendant to a term of eight years in state prison, sentencing him to the midterm of three years for having driven with a .08 or greater blood alcohol level, with a three-year enhancement for causing great bodily injury and a one-year enhancement for causing bodily injury to more than one person. The court imposed a consecutive sentence of one year, as one-third the midterm, for attempting to dissuade a witness. It sentenced defendant to a three-year term as the midterm for driving under the influence with two prior convictions, but, pursuant to Penal Code section 654, stayed sentence on that conviction. The court imposed a restitution fine of $4,800 pursuant to Penal Code section 1202.4, subdivision (b)(1); a conditional parole revocation fine of $4,800 pursuant to Penal Code section 1202.45; an additional fine of $2,000 (see Pen. Code, § 672); and a court security fee of $60. It ordered defendant to pay actual restitution to the victims pursuant to Penal Code section 1202.4, subdivision (f). It revoked defendant’s license pursuant to Vehicle Code section 13350, subdivision (b) and ordered him to undergo DNA testing pursuant to Penal Code section 296. Defendant was given 15 days’ credits for time served plus good time credits.
Defendant appealed. He requested a certificate of probable cause, alleging that after he entered his plea, he discovered his attorney was addicted to pills and cocaine and was being prosecuted in Solano County. Defendant complained his attorney had not filed a sentencing memorandum on his behalf, did not respond to the People’s sentencing memorandum and missed one of defendant’s final appearances. Defendant also expressed concern that one of the victims was an attorney with Contra Costa County. The judge to whom the case first was assigned had recused himself from the matter and defendant queried if either the judge who did hear the matter, or the district attorney’s office, or both, should have recused themselves. The superior court has not issued a certificate of probable cause.
Discussion
“Penal Code section 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.] ‘Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 766.)
There are no search and seizure issues here. Defendant is not entitled to attack the validity of his plea, and, in any event, on the evidence and the record, there would be no basis for attacking the plea. Defendant’s complaints, while relevant to sentencing, are not supported by any record evidence. On the appellate record, there is no reason to assume or suppose his attorney acted incompetently, or that either the People or the judge acted improperly. The sentence imposed was fair and authorized by the relevant statutes. The fines were fair and also authorized by the relevant statutes.
Conclusion
In sum, we have thoroughly reviewed the record and find no arguable issues. There are no issues requiring further briefing.
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.