Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07903594, R. L. Putnam and David A. Gottlieb, Judges.
Judge Putnam presided over appellant’s change of plea. Judge Gottlieb sentenced appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J., and Cornell, J.
PROCEEDINGS
Appellant, Deandre Lamont Allen, was charged in an information filed June 27, 2007, with felony battery on a peace officer (Pen. Code, § 243, subd. (c)(2), count one), felony resisting an executive officer (§ 69, count two), and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a), count three). The information alleged a prior prison term enhancement (§ 667.5, subd. (b)). On August 16, 2007, Allen executed a felony advisement, waiver of rights, and plea form acknowledging that he was waiving his constitutional rights, he would admit counts two and three, there would be no initial commitment to prison, the maximum sentence he faced was three years eight months, and count one would be dismissed. Allen acknowledged a factual basis for his plea.
Unless otherwise indicated, statutory references are to the Penal Code.
Appellant waived his right to a preliminary hearing on June 14, 2007.
The form set forth appellant’s rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
On August 16, 2007, Allen acknowledged executing the waiver of rights form and initialing the waiver of his constitutional rights and that he had enough time to discuss his case with his attorney. The court explained to Allen that the maximum prison term he faced was three years eight months. The court advised Allen that a different judge would sentence him and if that judge decided to sentence Allen to prison, Allen would have a right to withdraw his plea. The court advised Allen of his constitutional rights pursuant to Boykin/Tahl and of the consequences of his plea. The court further explained that a plea of no contest would be treated the same as a guilty plea. Allen pled no contest to counts two and three. The parties stipulated to a factual basis for the plea based on the police report and that Allen possessed a usable amount of cocaine base. Pursuant to the agreement, the court dismissed count one and the prior prison term enhancement.
On September 14, 2007, the court suspended imposition of sentence and placed Allen on formal probation for three years with various terms and conditions. The court ordered Allen to spend 365 days in jail with custody credits of 202 days. Allen filed a timely notice of appeal but did not obtain a certificate of probable cause.
Allen’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Allen was advised he could file his own brief with this court. By letter on January 22, 2008, we invited appellant to submit additional briefing. To date, he has not done so.
FACTS
On May 3, 2007, at 12:30 p.m., Allen and Sherry Harris were walking north on Warren Street in Fresno County when sheriff’s deputies contacted them and noticed Allen’s speech was slow and slurred. Allen smelled of alcohol. Allen told the deputies he had been discharged from parole a year earlier and possessed a “prison shank.” He also possessed a small screwdriver in his right front pants pocket.
The facts are derived from the probation report.
Deputies told Allen he was being taken into custody for his safety. When they asked him if he possessed any illegal substances or weapons, Allen told the deputies he did not and invited them to search him. Deputies found a piece of black plastic containing cocaine on Allen.
Allen immediately turned his body, stepped away, clenched his right fist, and turned toward the deputy. Fearing for his safety, the deputy struck Allen twice on the side of his face and pushed Allen up against a fence. As the deputies tried to force Allen to the ground, Allen resisted them. As Allen was brought to his feet, he spit at one of the deputies. Allen continued to resist the deputies and cursed at them. One deputy injured his left ring finger during the scuffle.
DISCUSSION
We initially note that Allen failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)
A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)
Appellant was promised a sentence of no initial commitment to prison and was placed on probation by the trial court. Appellant waived his Boykin/Tahl rights and admitted a factual basis for his plea. On this record, we have found no infirmity with Allen’s change of plea or the trial court’s imposition of probation. After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.