Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR916502.
Margulies, J.
Juan Jorge Cisneros appeals from a judgment following his plea of guilty and imposition of sentence. His counsel has filed a brief identifying no specific issues and asking this court to conduct an independent review of the record to determine whether there are any issues that could, if resolved in defendant’s favor, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares that he notified defendant that he may file a supplemental brief with this court, and the time for defendant to file a supplemental brief has expired.
We affirm the judgment because, based upon our independent review of the record, we conclude that it presents no arguable issues that require further briefing.
Since judgment was entered based upon a plea of guilty, the statement of facts is taken from the probation report and the parties’ on-the-record statement of the stipulated factual basis for the plea.
Defendant was stopped by a California Highway Patrol officer because the vehicle he was driving matched the description in a dispatch report of a possible drunk driver, and because the officer observed that neither the driver nor the passenger was wearing seatbelts. The officer detected a strong odor of alcohol. Defendant admitted drinking six beers, and failed the field sobriety tests. A breath test showed a blood alcohol content of 0.16 percent.
Defendant was charged with one felony count of driving under the influence (Veh. Code, § 23152, subd. (a)), one felony count of driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)), one misdemeanor count of falsely identifying himself to a police officer (Pen. Code, § 148.9, subd. (a)), and one misdemeanor count of operating a motor vehicle while his driving privileges were suspended (Veh. Code, § 14601.1, subd. (a)). The complaint also alleged that during the charged incident defendant had a blood alcohol content of 0.15 percent, and he had two prior convictions for driving under the influence.
Pursuant to a negotiated disposition defendant pleaded guilty to one felony count of driving under the influence (Veh. Code, § 23152, subd. (a)), and admitted two prior convictions for driving under the influence. The remaining counts and special allegations were dismissed subject to a Harvey waiver. The parties stipulated to a factual basis for the plea. The plea was open to the court, but the change of plea form did not include a check in the box indicating defendant had been advised that he would not be granted probation unless the court found unusual circumstances. Defendant signed and initialed the form for change of plea, acknowledging advice regarding all of the consequences of the plea and waiver of rights.
People v. Harvey (1979) 25 Cal.3d 754.
The probation report recommended that the court not find unusual circumstances pursuant to Penal Code section 1203, subdivision (e)(4), and that, even without that statutory limitation, the court should deny probation based upon the factors listed in California Rules of Court, rule 4.414, including that defendant’s prior performance on probation was poor and that he continues to drive under the influence of alcohol. It recommended imposition of the midterm of two years.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
All references to rules are to the California Rules of Court.
At the sentencing hearing the court found no unusual circumstances, and stated that even without the statutory limitation it would deny probation based upon its findings regarding the relevant factors set forth in rule 4.414. It found true the aggravating factor that defendant had prior convictions of increasing seriousness, and that prior performance on probation had been unsatisfactory. In mitigation, the court found that defendant had voluntarily acknowledged wrongdoing at an early stage. The court stated that although the factors in aggravation could support an upper term, it exercised its discretion in weighing the factors in aggravation and mitigation to impose the middle term. The court awarded a total of 75 days of credit for time served. It imposed a $400 restitution fine pursuant to section 1202.4, subdivision (b). It also imposed $400 parole revocation fine in the event parole were to be revoked (§ 1202.45), a $20 court security fee (§ 1465.8) and a $600 fine and a penalty assessment of $2,190 (Veh. Code, § 23546, subd. (a)).
ANALYSIS
We have independently reviewed the record. By pleading guilty defendant admitted the sufficiency of the evidence, and may not raise any issue that challenges his guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) He did not seek a certificate of probable cause, and therefore may not challenge the validity of the plea. The only issues he could raise on appeal are issues relating to denial of a motion to suppress, or issues arising after the plea was entered. (§ 1237.5; rule 8.304(b)(4).)
Defendant was represented by counsel, and fully advised of his rights and of the consequences of the plea. The plea was open to the court. Any error with respect to the failure to indicate on the plea form that defendant had been advised of the statutory limitation that he would not be granted probation unless the court found unusual circumstances is rendered harmless by the court’s alternative finding that it would not, even absent such limitation, exercise its discretion to grant probation based upon its findings and weighing of the relevant factors set forth in rule 4.414. No abuse of discretion can be found based upon the selection of the midterm because the sentence was less than the maximum defendant had agreed could be imposed, and the court imposed the midterm despite its finding of several aggravating factors. Defendant received the credits he was due, and no error appears with respect to the fines, penalties and fee imposed.
We conclude that there are no arguable errors that could result in reversal or modification of the judgment, and accordingly affirm the judgment without requiring further briefing.
CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.