Opinion
B231826
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA LORENCILLO, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. NA083591
BOREN, P.J., DOI TODD, J., CHAVEZ, J.
Defendant and appellant Joshua Lorencillo (defendant) appeals from a judgment entered upon a plea of no contest to charges of attempted murder and second degree robbery. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On August 31, 2011, we notified defendant of his counsel's brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and defendant has submitted no brief or letter. Upon reviewing the entire record, we have determined that although defendant has appealed from a judgment entered upon a plea agreement, he has not satisfied the prerequisites to such an appeal. We thus dismiss the appeal.
After a preliminary hearing, defendant was charged in count 1 of a four-count information with the attempted willful, deliberate and premeditated murder of Benjamin Weitman in violation of Penal Code section 664/187, subdivision (a). Count 2 alleged a violation of section 245, subdivision (a)(2), assault with a firearm. Count 2 further alleged that in the commission of the crime, defendant personally used a handgun within the meaning of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c), and that he inflicted great bodily injury upon the victim, within the meaning of section 12022.7, subdivision (a). In count 3, defendant was charged with second degree robbery in violation of section 211. The information further alleged in counts 1 and 3 that defendant personally and intentionally discharged a firearm, causing great bodily injury within the meaning of section 12022.53, subdivisions (c) and (d), and that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). In count 4, defendant was charged with first degree burglary in violation of section 459 and that in the commission of the crime, defendant was armed with a firearm, within the meaning of section 12022, subdivision (a)(1).
All further statutory references are to the Penal Code, unless otherwise indicated.
--------
On December 3, 2010, the date set for trial, the parties announced a plea agreement. Defendant agreed to plead no contest to counts 1 and 3, with a sentence of 10 years in prison, and admit the firearm use alleged pursuant to section 12022.53, subdivision (b), which carries a 10-year sentence enhancement. No credit for time served in custody would be awarded. The People agreed to amend the information by deleting the "willfully, deliberately and with premeditation" allegation in count 1.
The trial court advised defendant of his constitutional and statutory rights and the possible consequences of this plea. Defendant stated that he understood the consequences and his rights, and that he waived them. After the information was amended as agreed, defendant pled no contest to counts 1 and 3, and admitted the firearm allegation charged under section 12022.53, subdivision (b).
Prior to the date set for sentencing, defense counsel notified the court that defendant wished to withdraw his plea. The trial court granted defendant's request to appoint new counsel to bring the motion, and set the matter for hearing. Newly appointed counsel filed a written motion which was heard March 18, 2011. The grounds alleged in the motion were (1) ineffective representation by counsel, (2) plea induced by fraud and counsel's misrepresentations, and (3) insufficient time to deliberate and consider the plea bargain. The trial court denied the motion.
Defendant asked for immediate sentencing, and the trial court sentenced him as agreed to 20 years in prison as follows: the high term of nine years as to count 1, with an additional 10 years due to the gun use allegation, plus one year (one-third the middle term of three years) as to count 3, to run consecutively to the term in count 1. The court imposed mandatory fees and fines and ordered defendant to provide a DNA sample and fingerprints. Defendant was awarded 106 days actual custody credit from the time of his plea, plus 16 good time/work time credits. The court denied defendant's oral request for a certificate of probable cause to appeal. Defendant filed a timely notice of appeal from the judgment, but did not file a statement of grounds as required by section 1237.5, subdivision (a).
A defendant may not appeal from a judgment of conviction upon a plea of guilty or no contest unless the trial court has executed and filed a certificate stating there is probable cause for the appeal, or unless the defendant reserved the right to have certain issues reviewed on appeal. (People v. Shelton (2006) 37 Cal.4th 759, 769; § 1237.5; Cal. Rules of Court, rule 8.304(b).) Nor may a defendant appeal from the denial of a motion to withdraw a guilty or no contest plea without satisfying the requirements of section 1237.5. (People v. Ribero (1971) 4 Cal.3d 55, 63.) As defendant has failed to reserve issues for appeal or obtain a certificate of probable cause, we must dismiss the appeal. (People v. Shelton, supra, at p. 769; see also People v. Hodges (2009) 174 Cal.App .4th 1096, 1103-1104.)
Because of counsel's compliance with the Wende procedure and our review of the record, we conclude that defendant has received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The appeal is dismissed.