Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR08-86021-2
Margulies, J.
Christian Miguel Mendez appeals from the judgment entered following his no contest plea. His 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; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file his own supplemental brief, raising any points he chooses to call to this court’s attention. No supplemental brief has been received from defendant. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from a nolo contendere plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation report.
Defendant and three others were charged in a first amended complaint, filed September 18, 2008, with three counts of attempted murder (Pen. Code, §§ 187, 189, 664), three counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and one count of unlawful participation in criminal street gang activity (§ 186.22, subd. (a)). As to each attempted murder count and two of the three assault counts, defendant was also charged with a gang enhancement. (§ 186.22, subd. (b)(1)(C).)
All statutory references are to the Penal Code.
The probation report stated that two vehicles drove up to a graduation party attended by known Norteño street gang members and others. At least five young men jumped out of the vehicles and attacked the gang members with pipes and knives, inflicting serious stab wounds on at least three of the Norteño gang members before fleeing. One victim identified defendant as one of the attackers. A witness description of one of the vehicles matched defendant’s car. In a search of defendant’s car and house incident to his arrest, police found a knife and clothing with dried blood, as well as Sureño gang paraphernalia.
As part of a plea agreement, defendant pleaded no contest to one count of assault with a deadly weapon or by means of force likely to cause great bodily injury, and he admitted a gang enhancement under Penal Code section 186.22, subdivision (b)(1(B). The court dismissed all of the remaining counts and defendant waived his rights under People v. Harvey (1979) 25 Cal.3d 754 and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). At the plea hearing, the prosecution expressed concern that because assault by means of force likely to cause great bodily injury is not listed as a “serious felony” under section 1192.7, subdivision (c), a plea to that charge would not qualify for a full five-year street gang enhancement under section 186.22, subdivision (b)(1)(B). In response, defendant’s counsel agreed that defendant would, as part of a plea agreement, stipulate that he would be eligible for a five-year enhancement under section 186.22, regardless of the statutory language. In return, defendant would be considered eligible for probation, and the maximum sentence would be nine years. Defendant acknowledged his understanding of this bargain. He was ultimately sentenced to an eight-year term.
Although the first amended complaint did not charge an enhancement as to the particular count to which defendant pleaded, the trial court granted an unopposed oral motion to amend the complaint to add the enhancement.
Defendant’s ensuing request for the court to exercise its discretion to recall his sentence was denied.
DISCUSSION
We have reviewed the record on appeal. By entering a plea of nolo contendere, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of whether he is guilty or not guilty. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress or issues relating to matters arising after the plea was entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) Defendant did not obtain a certificate of probable cause, and, in any event, his notice of appeal challenges only postplea events.
Defendant was represented by counsel throughout the proceedings. We find no support in the record for any claims on appeal of ineffective assistance of counsel.
We find no meritorious sentencing issues that would require reversal of the judgment. Although, as discussed above, the trial court imposed a five-year street gang enhancement on an underlying charge that might not have supported a five-year enhancement upon conviction after a trial, defendant knowingly stipulated to this as part of his plea agreement. It therefore provides no basis for reversing or modifying the judgment. (People v. Buttram (2003) 30 Cal.4th 773, 783.) The court neither imposed a sentence that exceeded the “top” indicated by the parties’ plea agreement, nor abused its discretion by denying probation.
Defendant waived his rights under Blakely. Since the court imposed the midterm sentence on the assault count, there were no possible issues under Blakely in any event.
The restitution fines of $1,600 the court imposed were also appropriate.
The court did not abuse its discretion in declining to recall defendant’s sentence.
We find no arguable issues that require further briefing and, accordingly, affirm the judgment.
We concur: Marchiano, P.J., Dondero, J.