Opinion
F073307
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA FERNANDEZ, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15900680)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Peña, J., and Smith, J.
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Appellant Joshua Fernandez pled no contest to second degree robbery (Pen. Code, § 211) and admitted a personal use of a firearm enhancement (§ 12022.53, subd. (b)) and was sentenced to a stipulated 12-year prison term. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
On January 29, 2015, at approximately 9:45 p.m., I.M. was at a Red Robin restaurant in Fresno when, after arguing with his girlfriend, he walked outside to "cool off." As I.M. walked past Fernandez and 15-year old Noah R., Fernandez asked I.M. if he had a cigarette and I.M. replied that he did not smoke. Fernandez then asked if he had $1.00 and I.M. replied that he did not have any money on him. I.M. felt nervous and turned around to walk back into the restaurant but Fernandez stepped in front of him and asked what kind of cellphone he had. I.M. replied that he had an iPhone 5S. Fernandez lifted his shirt to expose a revolver and told I.M., "Let me have it!" After I.M. gave him the phone, Fernandez asked, "No money?" I.M. shook his head and Fernandez and Noah walked away.
I.M. contacted the police and they eventually detained Fernandez and Noah. The officers searched Fernandez and found in his waistband a revolver loaded with six rounds of ammunition and I.M.'s cellphone inside one of his pant pockets.
During an infield lineup, I.M. identified Fernandez as the man who robbed him. He also identified the revolver taken from Fernandez as the one Fernandez displayed during the robbery.
On May 28, 2015, the Fresno County District Attorney filed a single count information that charged Fernandez with second degree robbery and a personal use of a firearm enhancement.
On October 21, 2015, pursuant to the court's indicated sentence of 12 years and the court's agreement to allow him to remain free on bond pending sentencing, Fernandez pled no contest to the robbery count and admitted the arming enhancement.
On January 13, 2016, the court sentenced Fernandez to a prison term of 12 years, the mitigated term of two years on his robbery conviction and a 10-year arming enhancement.
On February 17, 2016, Fernandez filed a timely appeal. On February 22, 2016, the court granted Fernandez's request for a certificate of probable cause.
Fernandez's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on May 12, 2016, Fernandez contends that his original, private counsel told him the district attorney was offering a five-year term but counsel advised Fernandez not to accept the offer because counsel was trying to get Fernandez "let off on probation." Fernandez further contends that had he known he was not eligible for probation he would have accepted the offer. According to Fernandez, at his next court date when he told his private counsel he was ready to accept the deal, counsel told him there was never any deal and acted as if he had no idea what Fernandez was talking about.
Fernandez was represented by private counsel from his arraignment on the complaint in this matter on February 2, 2015, through July 6, 2015, when the court relieved private counsel and appointed a public defender to represent him. On July 6, 2015, the public defender declared a conflict and on August 6, 2015, the court appointed an alternate public defender to represent Fernandez. --------
Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." "Section 1237.5 is an exception to the general rule that appeals may not be brought by defendants who have pleaded guilty or nolo contendere. This section provides the general rule that defendants who have pleaded guilty must obtain a certificate of probable cause before they may bring an appeal." (People v. Hunter (2002) 100 Cal.App.4th 37, 41.)
" ' "Obtaining a certificate of probable cause [however] does not make cognizable those issues which have been waived by a plea of guilty." ' " [Citation.] Under section 1237.5, 'only "constitutional, jurisdictional, or other grounds going to the legality of the proceedings," survive a guilty plea.' " (People v. Hunter, supra, 100 Cal.App.4th at pp. 41-42.)
Section 12022.53 prohibits the court from granting probation to a person who is convicted of certain enumerated offenses, including robbery, if the person uses a firearm in committing the offense. (§ 12022.53, subds. (b) & (g).)
Appellant was not eligible for probation because he was charged with and pled to robbery and an arming enhancement pursuant to section 12022.53, subdivision (b). Consequently, the minimum sentence the court could imposed was 12 years, the mitigated term of two years on his robbery conviction and a 10-year term on the arming enhancement, as it did here. Further, since Fernandez contends defense counsel allegedly advised him not to take a plea bargain for a disposition that was unauthorized, Fernandez's contention does not raise any "constitutional, jurisdictional, or other grounds going to the legality of the proceedings." Thus, Fernandez's contention is not cognizable on appeal even though he obtained a certificate of probable cause.
Additionally, Fernandez's claim is not cognizable on appeal for the additional reason that it relies on facts outside the record. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 ["An appellate court's review is limited to consideration of the matters contained in the appellate record."].)
Further, following an independent review of the record we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.