Opinion
C052419
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. DOMINICK JOHN WYNN, Defendant and Appellant.
Defendant Dominick John Wynn pleaded no contest to forcible rape (Pen. Code, § 261, subd. (a)(2)) and first degree burglary (§ 459), and admitted enhancement allegations for a prior prison term (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§ 1170.12). As part of defendants negotiated plea, it was stipulated that he would be sentenced to state prison for 24 years eight months. At the subsequent sentencing hearing, the trial court denied probation and sentenced defendant in accordance with the plea agreement. Pursuant to a request by defendant for mental health treatment, the court recommended that defendant be evaluated for such treatment during his intake at the Department of Corrections (and Rehabilitation).
Undesignated statutory references are to the Penal Code.
Defendant appealed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. 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, asking this court to review various issues. In his brief, defendant states he did not run from the police or cause them any problems and that he "blacked out" and does not remember committing the offenses.
He also states he wants the victim tested for additional drugs because he believes she is lying about the use of force during the offense. However, defendants conviction was the result of his plea of no contest and he did not obtain a certificate of probable cause. Consequently, he is precluded from raising any issues except those arising after entry of his plea. (§ 1237.5; Cal. Rules of Court, rule 30(b)(5).) Furthermore, defendants plea of no contest, which has the same legal effect as a plea of guilty (§ 1016, subd. 3), "`waive[s] any right to have his conviction reviewed on the merits." (People v. Turner (1985) 171 Cal.App.3d 116, 125-126.)
Defendant also claims his attorney told him that, if he accepted the offer, he would avoid a life sentence and that, when defendant was trying to read the forms (presumably, the plea forms), his attorney said he should "just sign" them. As these claims relate to the validity of defendants plea, they too are not subject to review following a no contest plea. (§ 1237.5; Cal. Rules of Court, rule 30(b)(5).)
Section 667.61, subdivisions (c)(1) and (d)(4), imposes a sentence of 25 years to life for forcible rape committed during a burglary with the intent to commit that offense.
Defendant sets forth numerous other factual assertions: he "never had a charge such as this on [his] record"; he was evaluated by a doctor who "already had his mind made [up] on what was going to happen to [him]"; he had a nervous breakdown and his "mind never went back to normal"; and, he needs therapy for his "sexual problems." To the extent that these assertions involve information outside the record, we cannot consider them. (People v. St. Martin (1970) 1 Cal.3d 524, 537-538.) In any event, defendant fails to set forth how any of these claims resulted in an erroneous sentence, and no errors are apparent to this court in this regard.
Finally, defendant asserts he is being assessed too much restitution. Presumably, defendant is not referring to the victim restitution he was ordered to pay, which was in the amount of $76.97 for medical expenses. We assume that defendant is referring to the restitution fine mandated by section 1202.4, subdivision (b), which defendant was ordered to pay in the amount of $9,600. However, under section 1202.4, subdivision (b)(2), the trial court may use a specified formula for determining the restitution fine, which consists of multiplying the number of years of imprisonment a defendant is ordered to serve by the number of felony counts by $200. Applying this formula in defendants case produces a result of $9,600, the amount recommended in the probation report and ordered by the court. Furthermore, defendant failed to interpose an objection at sentencing to the amount of the restitution fine, forfeiting any objection on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 350-351.)
We have undertaken an independent examination of the record and have found no arguable error.
DISPOSITION
The judgment is affirmed.
We concur:
BLEASE, Acting P. J.
CANTIL-SAKAUYE, J.