Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF128159, Helios (Joe) Hernandez, Judge. Dismissed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant appeals from a judgment wherein he pled guilty to one count of lewd and lascivious conduct with a child under the age of 14 years, one count of lewd and lascivious conduct with a child under the age of 16 years, and one misdemeanor count of failure to register as a sexual offender.
PROCEDURAL HISTORY
An information was filed charging defendant with six felonies. Counts 1 and 2 charged defendant with lewd and lascivious acts on a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) Counts 3 through 6 charged defendant with lewd and lascivious acts on a child under the age of 16 years. (§ 288, subd. (c).)
All further statutory references are to the Penal Code.
A motion to consolidate another case charging defendant with a misdemeanor violation of section 290, failure to register as a sex offender, was granted, and it was designated as count 7.
On September 22, 2008, defendant entered into a plea agreement in which he agreed to plead guilty to counts 1, 3, and 7. The parties agreed to a three-year prison term, and the remaining charges would be dismissed.
The defendant executed a standardized plea form which he initialed and signed. It advised him of the rights that he was giving up by entering his plea and the consequences of his plea. He executed a waiver of his rights so he could enter his plea. Additionally, the defendant initialed a statement that, “No one has made any threats to me or anyone close to me, or placed any pressure of any kind on me in order to make me plead guilty.”
The court imposed the upper term of three years on count 3, the lower term of three years on count 1 to run concurrently, and 180 days in county jail to run concurrently. The court gave total custody credits of 1095 days. The court commented, and the prosecutor agreed, that defendant had already served his prison term and ordered him to report to the parole office on his release from custody.
At no time did defendant move to withdraw his plea or set aside his entry of plea.
Defendant filed an amended notice of appeal setting forth the basis of his appeal. He checked boxes indicating: (1) that the appeal is based on his sentence or other matters occurring after entry of plea; (2) the appeal is based on the denial of a motion to suppress (§ 1538.5); and (3) the appeal challenges the validity of the plea. With respect to the last basis, he attached a request for a certificate of probable cause stating the basis for the request. It was executed under penalty of perjury. The court denied his request for a certificate of probable cause, and the record does not show that he took any action to compel the court to issue one.
The record contains no written motion to suppress nor does it appear that such a motion was ever made.
FACTS
The victim was the stepdaughter of defendant. She testified that defendant had “fingered” her on many occasions over a period of about two years in the family home. The prosecutor clarified with her that the term she used meant that he had inserted his finger in her vagina.
DISCUSSION
Defendant has appealed, and at his request we appointed counsel to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a statement of facts, suggested potential issues on appeal and requesting that this court undertake an independent review of the entire record.
We provided defendant with an opportunity to file a personal supplemental brief, and he has done so. In it we discern four issues, all of which rely on facts that are not contained or fully developed in the record on appeal.
First, he claims that he was misled by his attorney into taking a plea bargain by giving him information that was neither correct nor explained. He does not provide any specifics.
Second, long before he entered his plea, he claims that he was falsely imprisoned when the prosecutor had his bail revoked, and the court remanded him into custody based on a remark he made to his mother. He is alleged to have stated that was going to beat the prosecutor in his case. He contends that he used that term in the sense that he was going to win the case and not physically assault the prosecutor. The person who claimed to overhear him say that he was going to shank the prosecutor was lying.
Third, he contends that he was threatened that if he did not accept the plea bargain, the prosecutor was going to arrest his mother based on a false statement she made regarding the threat to the prosecutor. That threat, along with claimed statements from his attorney that he was not going to win his case and never see his son and that he would be released and be able to see his son the next day, caused him to enter his plea. These claims conflict with his statement in the plea form that no one had threatened or pressured him in order to obtain his plea of guilty.
Fourth, he claims he can only read and write at the fourth grade level and that he has a speech impediment which prevents him from articulating and understanding complicated sentences. He claims that he was completely reliant upon what his attorney told him and that he did not fully understand what he was doing.
All of defendant’s claims of error are in substance a challenge to the validity of his plea. Because he did not obtain a certificate of probable cause, they are not cognizable on appeal, and we cannot address them. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Panizzon (1996) 13 Cal.4th 68, 76.).
Appellate counsel has suggested two potential issues on appeal: (1) whether defendant was adequately advised of his constitutional rights and did he knowingly and intelligently waive them for entry of plea; and (2) did the court sentence defendant in accordance with the terms of his plea agreement? We do not reach the merits of those potential issues either for the same reason.
Independent of our inability to address them on appeal due to the lack of a certificate of probable cause, the potential issues presented rely on facts that are not contained in the record on appeal. Even if we could reach them, the record does not contain all of the facts that would allow us to address them on the merits on direct appeal. In such a situation the defendant is relegated to some form of collateral attack on the judgment such as a petition for habeas corpus or writ of error coram nobis in which a hearing, if warranted and granted, can flesh out all the missing facts relevant to the claims. (People v. Kelly (2006) 40 Cal.4th 106, 121, fn. 4, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Pursuant to People v. Kelly, we have now concluded our independent review of the entire record and find no arguable issues on appeal.
DISPOSITION
The appeal is dismissed. (People v. Panizzon, supra, 13 Cal.4th at pp. 89-90.)
We concur: Ramirez P.J., King J.