Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC596192
Premo, J.
Defendant Alejandro David Lopez-Huerta pleaded no contest to two counts of aggravated sexual assault of a child. (Pen. Code, § 269.) He was sentenced to 30 years to life in prison. We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.
Further code references are to the Penal Code.
I. Factual and Procedural Background
Since there was no preliminary hearing in this case, the factual background is taken from the report of the probation officer.
On or about June 24, 2005, defendant’s eight-year-old daughter, told her mother that her father had touched her in a sexual manner. The mother telephoned police and defendant was taken into custody. During the two interviews of the victim that followed she stated that on or about June 23, 2005, defendant had entered the bedroom where she was sitting on the bed, turned off the television and locked the door. He removed the victim’s skirt and penetrated her vagina with his fingers. He touched her chest underneath her shirt and kissed her on the lips, removed her underwear and penetrated her vagina with his fingers a second time. The incident lasted approximately 20 minutes. The victim had at first resisted but was frightened because defendant had once previously abused her and threatened to beat her with his belt or kill her mother if she said anything. The prior incident occurred approximately two weeks before the June 23 incident. On the prior occasion defendant tried to push his penis inside the victim but could not get it in. The victim reported that it hurt her. During the incident defendant made the victim lick his penis. He also orally copulated her.
Defendant was charged by information with four counts of sexual abuse of a child under 14. He was assigned a deputy public defender to represent him and he pleaded not guilty. On December 14, 2005, defendant changed his plea to no contest to two of the four counts with the understanding that the other two counts would be dismissed. He was assisted by a Spanish language interpreter at the change of plea hearing. The trial court informed defendant that in pleading no contest to the two counts he would be “sentenced to State Prison for a minimum of 30 years and a maximum of a life term.”
On February 17, 2006, at defendant’s request, the trial court held a Marsden hearing. After taking testimony from defendant and his attorney, the court took the matter under submission in order to review the transcript of the change of plea hearing. On March 8, 2006, the trial court denied the motion.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant then desired to file a motion to withdraw his plea. His counsel declared a conflict as to that motion and the alternate public defender’s office was appointed to represent defendant. The alternate public defender filed a motion to withdraw the no contest plea, alleging that the change of plea proceedings had been misinterpreted by the Spanish language interpreter and that defendant really did not understand the consequences of his plea until he spoke with the probation officer. Before that motion could be heard, however, the alternate public defender declared a conflict and the Legal Aid office was appointed to handle the motion. The Legal Aid attorney filed the motion to withdraw the plea, the prosecutor filed written opposition, and an evidentiary hearing was held on December 13, 2006. The trial court took the issue under submission and concluded in a written order filed on January 5, 2007, that defendant had not shown good cause for withdrawal of the plea. Defendant was thereafter sentenced to the agreed-upon term of 30 years to life in prison.
Defendant filed a request for a certificate of probable cause, which the trial court denied. Defendant’s amended notice of appeal indicates that his appeal is based upon the sentence or other matters occurring after the plea.
II. Discussion
Absent a certificate of probable cause, this appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (§ 1237.5, subd. (a).) The appeal may be based upon matters that arose after entry of the plea and do not affect the plea’s validity. (Cal. Rules of Court, rule 8.304(b)(4).) We have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436and People v. Kelly (2006) 40 Cal.4th 106. Having done so, we conclude that there is no arguable issue on appeal.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Mihara, J.