Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F11395
Mihara, J.
Defendant Javier Castillo Gomez was charged with residential burglary (Pen. Code, § 459), false imprisonment by violence (§ 236), assault with the intent to commit rape (§ 220), sexual battery by restraint (§ 243.4, subd. (a)), criminal threats (§ 422), arson of an inhabited structure (§ 451, subd. (b)), and battery (§ 243, subd. (e)(1)). The trial court granted defendant’s motion to dismiss the sexual battery charge. After the trial court granted the prosecutor’s motion to amend the battery charge to battery on a cohabitant, defendant pleaded no contest to residential burglary of an occupied residence, arson of an inhabited structure, and battery on a cohabitant. In exchange for his plea, the trial court sentenced defendant to six years and four months and the remaining charges were dismissed. Defendant filed a timely notice of appeal.
All further statutory references are to the Penal Code.
Sometime before 2:48 a.m. on February 16, 2005, defendant went to Jane Doe’s home. Doe was defendant’s ex-girlfriend and the mother of his daughter. Doe was sleeping when defendant knocked on the door. After she answered the door, he accused her of cheating on him and entered the house. They began arguing and defendant hit her a few times in the head. Doe was lying on her bed when defendant picked her up and tore off her clothing. Defendant then said that he would rape her “so she would never forget about him and despise him in the future,” and he got on top of her. After they struggled, defendant grabbed her by the arm and took her downstairs. They punched each other. Defendant slapped Doe a couple of times, grabbed her, pinned her against the wall, and choked her. He then gave her a knife and told her to kill him. Doe ran upstairs, got dressed, and left the house with her daughter. Doe then contacted the police. While she was talking to an officer, defendant called her and told her that he was going to burn down the house and kill himself. He set fire to the house.
Appointed appellate counsel has filed an opening brief which states the case and the facts, but raises no issues. Defendant was notified of his right to submit written argument on his own behalf. He has submitted two letter briefs. He contends: (1) the arson and burglary convictions should be dismissed, because they occurred in his residence; (2) his sentence was unfair, because it was his first domestic charge and there was no property damage; and (3) his attorney rendered ineffective assistance by advising him not to take the prosecutor’s offer of seven years in prison and one strike conviction before the prosecutor rescinded it. There is no merit to these contentions.
Section 1237.5 provides, in relevant part, as follows: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . 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.”
Notwithstanding the broad language of section 1237.5, “two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 74.)
Since defendant has failed to obtain a certificate of probable cause, he cannot raise in this appeal any issues relating to the factual basis for his convictions or the competency of counsel regarding events that occurred prior to the entry of his plea. Moreover, defendant’s sentence complied with the terms of his negotiated agreement, and thus he cannot challenge the length of his sentence.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.
WE CONCUR: Elia, Acting P.J., McAdams, J.