Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC823178
ELIA, J.On January 29, 2009, pursuant to a negotiated disposition, defendant Manuel Gomez Alcala pleaded no contest to one count of first degree burglary (Pen. Code, §§ 459, 460), and admitted that a person, not an accomplice was present in the residence during the commission of the offense within the meaning of Penal Code section 667.5, subdivision (c)21. In exchange for his plea, defendant was promised a state prison sentence of two years "top/bottom."
On July 10, 2009, the court sentenced defendant to two years in state prison as per the negotiated disposition.
Defendant filed an amended notice of appeal on August 10, 2009, "based upon the grounds that the court committed sentencing error or other error which arose after entry of a guilty or nolo contendere plea and which does not challenge the validity of the plea."
Originally, on July 24, 2009, defense counsel filed a notice of appeal challenging the validity of the plea. The notice of appeal is marked "INOPERATIVE." It appears that counsel did not comply with California Rules of Court, rule 8.304, and Penal Code section 1237.5 and file a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings and request a certificate of probable cause. On July 30, 2009, counsel rectified her mistake. She requested a certificate of probable cause and executed a written statement signed under penalty of perjury based on the fact that the defendant was being evaluated in Mental Health Treatment Court in associated violation of probation actions. According to defense counsel, defendant acknowledged that the court informed him of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122 and he waived those rights, but "his state of mind impaired his ability to understand and knowingly give up his rights in this action." The court denied the request for a certificate of probable cause.
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues.
On December 28, 2009, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, we have reviewed the entire record and have concluded that there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.)
Facts
Since this case was resolved before a preliminary hearing was held and defendant waived referral to the probation department there are no underlying facts in the record.
Procedural History
On October, 27, 2008, the Santa Clara County District Attorney filed a felony complaint in which defendant was charged with one count of first degree burglary. The complaint contained an allegation that a person not an accomplice was present in the residence during the commission of the burglary. (Pen. Code, §§ 459, 460, 667.5.)
As noted, on January 9, 2009, defendant pleaded no contest to the burglary charge as well as admitting a misdemeanor probation violation. Before taking defendant's plea, the court advised defendant of his right to a preliminary examination at which he had the right to confront and cross-examine witnesses, subpoena witnesses as well as the privilege against self-incrimination and the right to testify. Defendant gave up the right to a preliminary examination. The court advised defendant of his trial rights, specifically, of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama, supra, 395 U.S. 238, and In re Tahl, supra, 1 Cal.3d 122. Defendant said that he understood and then freely and voluntarily waived those rights. Further, the court advised defendant that he had a right to testify as well as subpoena witnesses. Defendant stated that he understood and gave up those rights. Defendant was advised that the maximum potential sentence for the charge to which he would be entering a plea was six years; that he would be placed on parole for three years; that if he violated his parole he could be returned to state prison for up to one year and his parole could be extended for an additional year. The court advised defendant of the possible immigration consequences of his plea; and that there were other consequences of his plea, including that he would have to pay a restitution fund fine and other fines and fees. Counsel stipulated that there was a factual basis for the plea and admission "based upon the reports contained in the court file and the incorporated complaint." The court found that defendant "knowingly, intelligently, and voluntarily" entered his plea and admission. Defendant was assisted by a Spanish speaking interpreter throughout the change of plea hearing.
The Sentencing Hearing
As noted, the court sentenced defendant to two years in state prison. The court awarded defendant 300 days credit for time served. In addition to imposing a general order of restitution, the court ordered defendant to pay certain fines including a $200 restitution fund fine plus penalty assessment (Pen. Code, § 1202.4). The court imposed, but suspended a parole revocation fine in the same amount (Pen. Code, § 1202.45). The court advised defendant of a lifetime ban on owning, possessing or having in his custody or control any firearm or ammunition. Regarding the probation violations, the court reinstated probation and then terminated it.
Defendant's "worktime" credits were limited to 15 percent by operation of Penal Code section 2933.1 because he was convicted of a felony offense listed in subdivision (c) of Penal Code section 667.5.
In conclusion, our review of the entire record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J.PREMO, J.