Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FVI024596, Harold T. Wilson, Jr., Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, and Brian Cronin, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut J.
Appellant was sentenced to state prison pursuant to a negotiated plea agreement providing for a sentence lid of three years. He appeals from the sentence and challenges the validity of his guilty plea.
BACKGROUND
On June 13, 2006, Brian Cronin (appellant) went to the home of Sandra S. and her sister where he had several drinks and played darts in the garage. Sandra went to bed only to be awakened at approximately 11:30 p.m. by appellant, who rubbed against her leg, and asked her to call her sister for him. When Sandra went to the kitchen to use the telephone, she noticed her hearing impaired daughter was visibly upset. The daughter reported to Sandra that appellant had pulled up her shirt while she was asleep and fondled her breasts.
On June 19, 2006, appellant was charged in a felony complaint with committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)), and was arraigned. At the time set for his preliminary hearing, he accepted an offer to plead guilty to the charge in return for dismissal of two misdemeanor cases and an agreement that the court could consider a grant of probation by ordering a psychological evaluation. (Pen. Code, § 288.1.) The agreement also included a sentencing lid, so that in the event of a denial of probation, appellant would be sentenced to no more than the low term of three years in prison. The agreement included, in addition to the waivers of constitutional rights, a waiver of “any right to appeal from any motion[he] may have brought or could bring and from the conviction and judgment in [his] case since [he was] getting the benefit of [his] plea bargain.” The parties stipulated that the police reports (not a part of the record) established a factual basis for the plea.
The psychological evaluation was duly ordered at the time of the guilty plea, and was considered by the sentencing court. Defense counsel requested a grant of probation, but the court denied probation because all the reports noted appellant’s lack of remorse, as well as the fact that the 12-year-old victim was hearing impaired, rendering her particularly vulnerable. The court sentenced him to three years in state prison pursuant to the plea agreement, awarded him 257 days presentence custody credit, and ordered him to pay a $600 restitution fine.
He appealed. Initially, he appealed from the sentence only, but requested a certificate of probable cause on the ground he received the maximum sentence and was “not let known [sic] what the persentage [sic] of time was.” Subsequently, and in light of that statement, a staff attorney from Appellate Defenders, Inc., filed an amended notice of appeal which indicated that in addition to appealing from the sentence, appellant wished to challenge the validity of the plea agreement. The certificate of probable cause was granted on March 5, 2007. That same day, the superior court received a letter from appellant indicating he wished to “void” his appeal form. After communication with Appellate Defenders, Inc., he indicated he wished to challenge his sentence instead.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief under the 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 summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, and he has filed a supplemental brief, in which he argues he was not effectively represented by trial counsel because he was not advised of a meritorious defense. Specifically, he asserts that the police reports, probation report and the psychological report all reflect he had consumed alcohol prior to the offense and thus was too intoxicated to form the specific intent needed for a conviction.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, the record shows appellant was adequately advised of the rights being waived and the consequences of pleading guilty. Further, the plea agreement reflects appellant had sufficient time to consult with his attorney concerning the case. In open court, appellant informed the court he did not have any questions about his rights.
Appellant’s claim that trial counsel informed him he had no available defense cannot be considered in this appeal because it refers to evidence which is outside the record on appeal. (People v. Jones (2003) 30 Cal.4th 1084, 1105; People v. Pope (1979) 23 Cal.3d 412, 426.) Moreover, other than the information in presentencing reports about appellant’s ingestion of alcohol, there is nothing in the record to support an inference that voluntary intoxication might have been a defense to appellant’s crime. By itself, evidence of voluntary ingestion of alcohol does not establish an affirmative defense to the specific intent to commit lewd acts on a child. To be considered as a defense, voluntary intoxication is only admissible upon the issue of whether or not the defendant actually formed a required specific intent. (People v. Saille (1991) 54 Cal.3d 1103, 1112.) There is no evidence in this record to support such a showing. Absent such a showing, we find no constitutional violation. (Strickland v. Washington (1984) 466 U.S. 668, 698.)
Finally, appellant’s notice of appeal reveals his confusion over whether he was improperly sentenced to the maximum term and his desire to challenge the sentence. The crime of lewd acts on a child is punishable by three, six, or eight years in state prison. (Pen. Code, § 288, subd. (a).) The plea agreement provided a sentence lid of the low term of three years, which is what appellant received. The sentence was proper.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur:Hollenhorst Acting P. J, McKinster J.