Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. SCR-464306, SCR-476375
Marchiano, P.J.
Defendant Kevin M. Anthony appeals a judgment based on pleas of no contest in two separate cases. The opening brief filed by his appellate counsel raises no issues and asks this court for an independent review pursuant to the decision in People v. Wende (1979) 25 Cal.3d 436. Counsel advised defendant of his right to file a supplementary brief and none was filed. After reviewing the record, we find no meritorious issues to be briefed or argued.
Background
On May 7, 2005, a woman notified Sonoma county sheriff deputies of an incident of domestic violence in Santa Rosa. The deputies approached a couple, who were visibly upset, as they walked along a road near the reported location of the incident. When they questioned the couple, the male—defendant—admitted that he was carrying a weapon, and explained that he belonged to a street gang and needed it for protection. The deputies retrieved a loaded semiautomatic pistol defendant had tucked into the waist band of his pants and concealed under his shirt and jacket. Investigators later learned defendant was a member of the Norteños criminal street gang.
Two months later prosecutors filed a complaint against defendant alleging four counts: carrying a concealed weapon, punishable as a felony in that it was capable of being discharged and not registered to defendant (Pen. Code, § 12025, subd. (a)(2)); carrying a loaded firearm, punishable as a felony in that the firearm was not registered to defendant (§ 12031, subd. (a)(1)); carrying a concealed weapon, punishable as a felony in that defendant was an active participant of a street gang (§ 12025, subd. (a)(2)); and carrying a loaded firearm, punishable as a felony in that defendant was an active participant of a street gang (§ 12031, subd. (a)(1)). For convenience, we refer to this proceeding as Case One. (Case No. SCR-464306.)
Further statutory references are to the Penal Code.
Defendant initially pleaded not guilty to the charges in Case One. Later, however, he submitted a written and signed negotiated change of plea. Under this agreement, defendant pleaded no contest only to the last of the four counts—carrying a loaded firearm, punishable as a felony in that defendant was an active participant of a criminal street gang. (§ 12031, subds. (a)(1), (2)(C).) The agreement also called for a suspended imposition of judgment and a continuance pending submission of the probation report. Before accepting this plea, on August 31, 2005, the trial court questioned the defendant to ensure that his plea and waiver of rights was knowing, intelligent, and voluntary. The court then accepted the plea based on the facts set out in the police report and continued the matter for submission of a probation report. The sentencing hearing was scheduled for November 22, 2005.
Defendant, meanwhile, was released after posting bail in Case One. A few days before the scheduled sentencing hearing, early on the morning of November 17, 2005, defendant broke into a residential apartment in Santa Rosa. Upstairs he found a 15-year-old girl (Jane Doe) sleeping with her younger sister. Jane Doe’s mother and boyfriend were sleeping in the other bedroom. Defendant put a knife to Jane Doe’s throat, told her to be silent, and forced her downstairs. There he repeatedly subjected her to rape and other sex offenses, at one point forcing her to move from the living room into the kitchen. During the attack he told Jane Doe he was a member of the Norteños gang. After dawn, defendant threatened to kill her if she told anyone about the incident and fled the scene. Not long after this attack, Jane Doe gave police a description of her attacker, and told them she suspected he had taken her underwear.
Police arrested defendant later the same day, and Jane Doe identified him as her attacker in a photo line-up. Police recorded an interview with defendant conducted later in the day. He initially denied any involvement, stating that he had been with his “cousin” at the time. He did, however, admit that his mother lived in the same apartment complex as the victim, and that he frequently went to the complex to visit her. Toward the end of the interview, defendant complied with an investigator’s suggestion that he write a note of apology to Jane Doe. In this note he wrote that he had “violated [her] privacy and [made her] into a woman when [she] wasn’t ready,” as well as a number of other incriminating statements. After completing the note, defendant told the investigator “I guess I admitted it.”
An analysis of semen collected with a vaginal swab during Jane Doe’s medical examination matched defendant’s genetic profile. Police also monitored his telephone calls while he was in custody, and in one monitored conversation defendant and his “cousin” agreed that she would tell police that he had been at her house during the time of the attack on Jane Doe. Investigators found underwear matching Jane Doe’s description in the parking lot of the complex where defendant’s “cousin” lived.
The facts of the two cases are drawn from the probation reports submitted in connection with each.
After defendant’s arrest, he continued to waive time in Case One, and the court trailed sentencing in that case pending the prosecution of defendant’s subsequent offenses. On May 31, 2006, the prosecution filed an information setting out these subsequent offenses in 20 counts. As amended, the information charged defendant with one count of first degree burglary (§ 459), one count of assault with a deadly weapon (§ 245, subd. (a)(1)), two counts of kidnapping for the purpose of rape and other sex offenses (§ 209, subd. (b)(1)), seven counts of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible sexual penetration (§ 289, subd. (a)(1)), four counts of forcible rape (§ 261, subd. (a)(2)), one count of willful furtherance of felonious conduct while an active participant of a criminal street gang (§ 186.22, subd. (a)), one count of attempting to dissuade a victim from making a report of the victimization (§ 136.1, subd. (b)(1)), one count of threatening to commit a crime resulting in death or great bodily injury (§ 422), and one count of molesting a child after committing burglary (§ 647.6, subd. (b)). Each of the counts included one or more sentence enhancement or other special allegations, or both, pursuant to one or more of sections 186.22, 667.5, 667.61, 667.8, 1192.7, subd. (c), 12022, 12022.1, and 12022.3. For convenience we refer to this proceeding as Case Two. (Case No. SCR-476375.)
Defendant initially pleaded not guilty to all counts in Case Two and denied all the enhancement and special allegations. The case proceeded to trial, and by November 15, 2006, the court had sworn a jury. Two days later, however, defendant again submitted a written and signed negotiated change of plea. Under this agreement, defendant pleaded no contest to only one of the four counts of forcible rape (§ 261, subd. (a)(2)). Of the remaining 16 counts, defendant pleaded no contest to only two—the count charging him with an attempt to dissuade a victim from making a report of the victimization (§ 136.1, subd. (b)(1)), and the count charging him with willful furtherance of felonious conduct while participating actively in a criminal street gang (§ 186.22, subd. (a)). In lieu of all the sentence enhancement and other special allegations, defendant admitted three allegations in relation to the count of forcible rape—that is, the circumstances set out in section 667.61, subdivisions (d)(2), (4), and (e)(4). The primary elements of the negotiated plea stipulated an indeterminate sentence of 25 years to life on the charge of forcible rape, determinate sentences on the two remaining charges to run concurrently, and restitution fines. Among other things, defendant also acknowledged that his parole was not guaranteed but dependent on the decision of the Board of Parole. The court questioned the defendant to ensure that his change of plea and waiver of rights were knowing, intelligent, and voluntary. The court then accepted defendant’s change of plea, alluded to the testimony set out in the transcript of defendant’s preliminary examination, and made appropriate findings.
On February 1, 2007, the court imposed sentence. With regard to Case Two, it imposed the stipulated indeterminate term of 25 years to life for defendant’s conviction on the charge of forcible rape. It then imposed determinate sentences, to run concurrently with the indeterminate sentence, for defendant’s conviction on the charges of violating section 136.1, subdivision (b)(1)), and section 186.22, subdivision (a). With regard to Case One, the court imposed a determinate sentence for defendant’s conviction of violating section 12031, subdivision (a)(1), directing that this term, too, was to run concurrently with the indeterminate sentence in Case Two. The court imposed the midterm of two years imprisonment for all three determinate sentences. With regard to both cases, the count imposed a restitution fine of $10,000, together with a second restitution fine in the same amount to be suspended absent parole revocation. (§§ 1202.4, subd. (b), 1202.45.) Finally, the court awarded custody time credits in both cases and dismissed the 17 remaining counts in Case Two.
Defendant filed a notice of appeal several days later.
Discussion
Initially, we note the appeal is improper. A defendant cannot appeal a conviction based on a plea of no contest unless he or she first requests, and the trial court issues, a certificate of probable cause. (§ 1237.5.) Here defendant’s trial counsel submitted a declaration of merit, but it does not appear from the record that the court ever issued a certificate of probable cause.
There are two exceptions not applicable here. (See Cal. Rules of Court, rule 8.304(b).)
In any event, we have reviewed the entire record. It discloses no prosecutorial misconduct. It indicates defendant was represented by competent trial counsel at all stages of the proceeding, including the stages at which defendant changed his plea in both Case One and Case Two. As we have previously noted, the trial court was careful in each of the two cases to advise defendant of his rights and the consequences of his plea, and to ensure that his change of plea was voluntary, knowing, and intelligent. As there was no error relating to defendant’s plea in either case, he is not entitled to challenge the trial court’s determination of his guilt. By pleading no contest, defendant admitted the sufficiency of the evidence establishing the crime. (See People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
We find no sentencing error. The court imposed sentences in Case Two in accordance with the plea agreement in that case. It imposed a determinate sentence in Case One to run concurrently with the indeterminate sentence of Case Two. As all determinate sentences imposed were the midterm, the court had no occasion to make findings concerning aggravating factors. The court imposed restitution fines in accordance with statutory requirements. (§§ 1202.4, subd. (b), 1202.45.) Defendant’s counsel approved the court’s calculation and award of custody time credits in both cases.
We do note, however, that the abstract of judgment incorrectly indicates a conviction under section 186.1 rather than under section 136.1.
Disposition
The judgment is modified to indicate conviction for a violation of section 136.1, subdivision (b)(1), rather than one for a violation of section 186.1. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections.
We concur: Stein, J., Margulies, J.