Opinion
G044886 Super. Ct. No. 08WF1451
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS LEDEZMA, Defendant and Appellant.
Neil Auwarter, under appointment by the Court of Appeal, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Dismissed.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We appointed appellate counsel to represent Jose Luis Ledezma. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court no issues were found to argue on his behalf. We gave Ledezma 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
Counsel did not suggest any issues to assist the court in conducting its independent review. We have independently examined the record and we found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We dismiss the appeal.
FACTS
An information charged Ledezma with two counts of sexual intercourse or sodomy by a person 18 years or older with a child 10 years or younger in violation of Penal Code section 288.7, subdivision (a) (counts 1 and 2), one count of oral copulation or penetration by a person 18 years or older with a child 10 years or younger in violation of Penal Code section 288.7, subdivision (b) (count 3), and two counts of lewd acts with a child under 14 in violation of Penal Code section 288, subdivision (a) (counts 4 and 5).
If Ledezma was willing to plead guilty and forgo a trial at which the victim would have to testify, the trial court indicated it would sentence him to prison for 25 years to life. The prosecutor indicated the sentence should be 50 years to life.
Before accepting the guilty pleas, in open court and on the record, the trial court reviewed with Ledezma a multi-page document entitled, "'Advisement and Waiver of Rights for Felony Guilty Plea.'" Ledezma acknowledged he had reviewed the entire form with his lawyer before signing and initialing the form. Ledezma indicated the factual basis on page three of the document was a true statement. The factual statement stated: "In Orange County, California, on August 2, 2008[,] I willfully, unlawfully and lewdly touched the vagina and buttocks skin-to-skin of Jane Doe who was [six] years old when I was 20 years old, for my own sexual gratification. I also penetrated Jane Doe's vagina and anus with my penis and put my penis in Jane Doe's mouth on that same date. My acts constituted substantial sexual conduct of sexual intercourse, sodomy, oral copulation and masturbation." Ledezma then pled guilty to all five counts. Counsel joined in the pleas and waivers and the court found the pleas and waivers to be free, voluntary, knowing, and intelligent. At the defendant's request, the court continued sentencing. When Ledezma returned for sentencing, the court sentenced him to 25 years to life in prison as previously indicated.
Ledezma filed a timely notice of appeal and requested a certificate of probable cause. In his request for certificate of probable cause, Ledezma claimed his sentence was illegal because: "I had no priors or any crime history. I always follow the rules. [I]t was to[o] much time . . . in jail and prison, it was really hard to think about the decision that I had to make." The trial court denied Ledezma's request for a certificate of probable cause.
DISCUSSION
Penal Code section 1237.5 provides in relevant part that "[n]o 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."
The defendant may, however, raise issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed without obtaining a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th 773.) In determining whether a certificate of probable cause is required, courts must look to what the defendant is challenging. The "critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of [Penal Code] section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Here, Ledezma challenges the imposition of an agreed upon sentence. He asserts the sentence was too long and implicitly asserts he did not have adequate time to decide whether he wanted to plead guilty. Either assertion constitutes a challenge to the validity of the plea and requires a certificate of probable cause. Accordingly, his appeal is not cognizable and must be dismissed.
Even if Ledezma's appeal was cognizable, we would find it had no merit. Ledezma was facing a potential sentence of 75 years to life. The prosecutor objected to the court's indicated sentence of 25 years to life and believed the appropriate sentence was 50 years to life. Based on Ledezma's admission of guilt, which allowed the victim to avoid testifying at trial, the court imposed a significantly reduced sentence. There is nothing in the record to suggest this sentence was either inappropriate or illegal.
Regarding the circumstances surrounding the entry of the pleas, the record reflects Ledezma entered his pleas after signing a written waiver of rights. The court painstakingly reviewed the form with Ledezma. The written plea form and the transcript of the hearing at which he entered his pleas establishes he understood the nature of both the charges against him and the constitutional rights he was giving up. The record also establishes Ledezma's waiver of his rights and his subsequent admissions were made freely, knowingly, and voluntarily and the pleas were supported by an adequate factual basis. Ledezma was at all times represented by competent counsel who protected his rights and interests. We find no arguable issues exist concerning entry of the pleas.
DISPOSITION
The appeal is dismissed.
O'LEARY, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.