Opinion
A152026
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEX JOSEPH GREENE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-16-85055)
Defendant Alex Joseph Greene appeals from a judgment entered pursuant to a plea of no contest to one count of assault with intent to commit a felony (Pen. Code, § 220, subd. (a)(1)). In accordance with the negotiated disposition, the trial court sentenced defendant to a total term of two years in state prison (with a total of 158 days of presentence credit) and imposed various fines and fees.
His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
Penal Code section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under Penal Code section 1538.5, subdivision (m); and (2) post-plea sentencing issues. (See People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant did not make a suppression motion.
Defendant submitted a certificate of probable cause. The trial court apparently took no action, and neither granted nor denied the application. Since defendant failed to file a completed application, he is not able to challenge the validity of his plea or any other matter that preceded its entry, except as permitted under the exceptions. (People v. Cole (2001) 88 Cal.App.4th 850, 868.).
Even if defendant had produced a completed application, no issues exist. In his submitted request for a certificate of probable cause, defendant disputed the validity of his plea on the ground probation was not accurately represented to him. The record shows otherwise. The trial court explained he would be "eligible for probation. If I find unusual circumstances to put you on probation." The court went on to state "[e]ven with a grant of probation, you can be required to spend up to a year in the county jail," to which defendant replied "[y]es, ma'am." Defendant, represented by counsel, executed a plea and waiver of rights form, and the trial court questioned defendant directly to ensure he understood the proposed disposition and entered into it freely and voluntarily. Defendant initialed and checked the box stating: "I understand that I will not be granted probation unless the court finds at the time of sentencing that this is an unusual case where the interests of justice would be best served by granting probation." The court found the transcript of the preliminary hearing provided a factual basis for the plea. Following the court's acceptance of defendant's plea, the court continued the matter for sentencing.
In his submitted request, defendant additionally claimed ineffective assistance of counsel during the plea process for failing to have family members speak on his behalf. However, many of defendant's friends provided letters on his behalf, "most of which [were] quite supportive of [defendant]," and at the sentencing hearing, about 15 people appeared in the courtroom in a show of support for defendant.
The trial court reviewed the probation report and recommendation, in addition to the numerous letters in support of defendant. While the court found no unusual circumstances existed and denied probation, it did, however, find factors in mitigation and sentenced defendant to the lower term of two years and imposed various fines and fees.
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the judgment.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.