Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Nancy No. 1213559. E. Ashley, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
Appellant Esequiel Espinoza, as part of a negotiated plea, pled no contest to a charge of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Espinoza admitted an allegation that he previously was convicted of a serious felony within the meaning of Penal Code sections 1192.7, subdivision (c), and 667, subdivision (d). Espinoza agreed there was a factual basis for the plea, and the prosecutor stipulated the factual basis was contained in the preliminary hearing transcript. Under the terms of the plea agreement, Espinoza would receive the mid-term of two years for the possession charge plus two years for the strike prior, for a total prison term of four years. Espinoza waived time for sentencing and immediately was sentenced to four years in state prison as agreed. Espinoza’s request for a certificate of probable cause was denied. Espinoza filed a notice of appeal on March 13, 2007, which we deemed timely filed by a March 23, 2007 order.
All subsequent statutory references are to the Penal Code.
Espinoza’s appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter dated May 16, 2007, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Espinoza filed a supplemental letter brief asserting (1) a challenge to the sufficiency of the evidence presented at the preliminary hearing; (2) that he was not fully advised of the consequences of his plea by either the court, the prosecutor or his attorney, particularly that he would be required to serve 80 percent of his sentence rather than 50 percent, and his attorney was ineffective for failing to fully advise him of the plea’s consequences; (3) when entering his plea, he answered “yes” to the court’s questions only because his attorney told him to; and (4) no probation report was prepared. We will affirm.
FACTS
Stanislaus County Deputy Sheriff Joshua Clayton was on duty on August 9, 2006, at about 2:15 a.m., when, as he was driving down a street, he saw someone he did not recognize. As he slowed down, he recognized the person as Espinoza, who he knew from prior contacts and knew was on parole. Deputy Clayton saw Espinoza look over his right shoulder as he walked, and saw him make a “flicking motion” with his left hand, as if throwing something. Deputy Clayton stopped, got out of the car, and contacted Espinoza, who denied throwing anything. On the ground, Deputy Clayton found a glass pipe commonly used for smoking methamphetamine, which had an off-white substance in it typical of methamphetamine, and a small white baggie.
DISCUSSION
Espinoza’s evidentiary challenges fail because 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.) Accordingly, a guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility.
A no contest plea has the same legal effect as a guilty plea. (People v. Hobbs (1994) 7 Cal.4th 948, 955.)
Furthermore, appellant has failed to obtain a certificate of probable cause. By challenging the evidence presented at the preliminary hearing and the circumstances surrounding the entry of his plea, Espinoza is, in effect, challenging the validity of his plea. Without a certificate of probable cause, however, our review is limited to search and seizure or sentencing issues. (People v. Mendez (1999) 19 Cal.4th 1084, 1088; People v. Panizzon (1996) 13 Cal.4th 68, 76 [challenge to validity of plea foreclosed by absence of certificate of probable cause]; People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245 [claim of ineffective assistance occurring prior to plea went to validity of plea and therefore not cognizable on appeal in absence of compliance with certificate of probable cause requirements].)
There is no search and seizure issue in the instant action. The only sentencing issue Espinoza raises is the failure to prepare a probation report. Section 1203, subdivision (b)(1) requires a probation report to be prepared prior to sentencing whenever the defendant is eligible for probation. When the defendant’s eligibility for probation mandates preparation of a probation report, an effective waiver requires a written stipulation or oral agreement on the record. (§ 1203, subd. (b)(4).) But subdivision (g) of section 1203 makes the report discretionary where the defendant is ineligible for probation. Probation-ineligible defendants may waive the requirement by failing to request a report or failing to object to its absence. (See, e.g., People v. Johnson (1999) 70 Cal.App.4th 1429, 1432-1433; People v. Llamas (1998) 67 Cal.App.4th 35, 38-39 (Llamas).) Since Espinoza admitted the prior strike allegation, he was statutorily ineligible for probation so that a probation report was merely discretionary. (§§ 667, subd. (c)(2), 1170.12, subd. (a)(2), 1203, subd. (g); Cal. Rules of Court, rule 4 .411(c).) Under Llamas, therefore, Espinoza waived the issue by failing to request a report and by waiving the time for sentencing.
Section 1203, subdivision (b)(4) provides as follows: “The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that there shall be no waiver unless the court consents thereto. However, if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c.”
Section 1203, subdivision (g) provides: “If a person is not eligible for probation, the judge shall refer the matter to the probation officer for an investigation of the facts relevant to determination of the amount of a restitution fine pursuant to subdivision (b) of Section 1202.4 in all cases where the determination is applicable. The judge, in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person. Upon that referral, the probation officer shall immediately investigate the circumstances surrounding the crime and the prior record and history of the person and make a written report to the court of his or her findings. The findings shall include a recommendation of the amount of the restitution fine as provided in subdivision (b) of Section 1202.4.”
Espinoza also contends a report was not prepared as required by section 1203c, which requires a probation report following any felony conviction. (People v. Otto (2001) 26 Cal.4th 200, 212.) Section 1203c, subdivision (a)(1) provides that when a person is committed to an institution under the Department of Corrections and Rehabilitation’s jurisdiction, the probation officer of the county from which the person is committed has a duty to send the Department of Corrections and Rehabilitation “a report of the circumstances surrounding the offense and the prior record and history of the defendant, as may be required by the Secretary of the Department of Corrections and Rehabilitation.” The report must accompany the commitment papers, and when a defendant is ineligible for probation, the report may consist of any pre-sentence report the probation officer prepared on the court’s request. (§ 1203c, subd. (b).) While Espinoza asserts no such report was prepared in his case, the record is silent on the issue, i.e. it is impossible to tell whether or not a report was prepared. Accordingly, we reject the claim, as it is based on matters outside the record. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [“our review on a direct appeal is limited to the appellate record”].)
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.