Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF0708, Lance Jensen, Judge. Appeal dismissed.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Christian Netto was charged with attempted murder (Pen. Code, §§ 664, subd. (a)/187, subd. (a); all further statutory references are to the Penal Code), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), shooting at an occupied vehicle (§ 246), and street terrorism (§ 186.22, subd. (a)). The information alleged defendant committed the first four crimes for the benefit of a criminal street gang named McClay Street (§ 186.22, subd. (b)). Finally, as to count 1, the information included a vicarious discharge of a firearm by a gang member allegation against defendant (§§ 12022.5, subd. (a), 12022.53, subds. (c) & (e)(1)).
Before trial, defendant, with the assistance of counsel, negotiated a plea bargain with the prosecution, agreeing to enter a guilty plea to attempted murder and admit the related criminal street gang allegation in return for a 15-year state prison sentence plus dismissal of the remaining counts and allegations. The trial court accepted the proposed plea and entered the agreed-upon sentence with credit for pretrial custody and good time credits. Defendant then timely filed an appeal from the judgment.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. While not arguing against defendant, she advised us no issues were found to argue on his behalf. (Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493]; People v. Wende (1979) 25 Cal.3d 436.) We offered defendant time to file written argument and he submitted a letter brief.
After examining the record and reviewing the briefs, we conclude the record contains no arguably meritorious issues and dismiss the appeal.
FACTS AND PROCEDURAL BACKGROUND
According to the preliminary hearing testimony, defendant was driving a car also occupied by Michael Ayala. Both defendant and Ayala were active participants in the McClay Street criminal street gang. After an exchange of rude hand gestures between Ayala and the passenger of a Toyota, defendant made a U-turn and began following that vehicle. The Toyota’s occupants heard gunshots, one of which struck the passenger in his earlobe. Although defendant sped off, the police stopped the car a short time later. After being ordered out of the car, Ayala told an officer there was a 9 millimeter handgun under his seat and exclaimed, “Come on. I only shot in the air.”
On the morning trial was scheduled to begin, defendant initialed and signed a 5-page felony guilty plea form agreeing to plead guilty to attempted murder and admit the related criminal street gang allegation in return for a 15-year prison sentence, consisting of the low term of 5 years for the offense with an additional 10 years for the allegation. (§§ 664, subd. (a) & 186.22, subd. (b)(1)(C).) In part, the plea form stated: “I understand I have the right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including... my right to appeal from [the] guilty plea” and “any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.”
Before accepting the guilty plea and imposing sentence, the trial judge reviewed the plea form with defendant, determined that he initialed and signed the document, understood and waived the constitutional rights lost by entering the plea, and its direct consequences. The court also determined a factual basis existed for the plea.
Defendant subsequently filed a notice of appeal “from the judgment and sentence.” The record does not reflect he sought or obtained a certificate of probable cause before filing the appeal.
DISCUSSION
To promote judicial economy by eliminating frivolous appeals (People v. Panizzon (1996) 13 Cal.4th 68, 75-76), section 1237.5 declares “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty... 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.” (See also Cal. Rules of Court, rule 8.304(b).) Thus, “[a] defendant may not appeal ‘from a judgment of conviction upon a plea of guilty...,’ unless he has obtained a certificate of probable cause. [Citations.]” (People v. Cuevas (2008) 44 Cal.4th 374, 379.)
Defendant did not comply with the statutory requirements before filing this appeal and many of the grounds mentioned in his letter brief directly challenge the plea. Defendant asserts he was “forced to sign the deal because it was offered... the day before I was scheduled to go to trial.” He further claims he “did not know that [Ayala] brought a gun” and “was afraid that if I didn’t do as [Ayala] said... he could have easily shot me....” Defendant also complains the evidence of his gang involvement and the existence of corruption in the courts rendered it impossible for him to receive a fair trial.
These arguments are unavailing. “It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] (People v. Panizzon, supra, 13 Cal.4th at p. 76.) Consequently, “irregularities which could be cured, or which would not preclude subsequent proceedings to establish guilt, are waived and may not be asserted on appeal after a guilty plea. [Citation.]” (People v. Turner (1985) 171 Cal.App.3d 116, 126.) Also, an insufficiency-of-the-evidence claim “is not cognizable on appeal, with or without a certificate of probable cause” because “[a] guilty plea ‘“concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt.” [Citation.]’” (People v. Thurman (2007) 157 Cal.App.4th 36, 43.)
But “[n]otwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty... plea appeal without issuance of a certificate: (1) search and seizure issues...; and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]” (People v. Panizzon, supra, 13 Cal.4th at pp. 74-75.) The present case does not present any issues concerning Fourth Amendment violations. However, defendant’s letter brief does challenge the length of his prison sentence describing it as “too much time” and “utterly outrag[e]ous.”
Panizzon held, “[i]n determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty..., courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, 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 section 1237.5. [Citation.]” (People v. Panizzon, supra, 13 Cal.4th at p. 76.)
This case is very similar to Panizzon. There the defendant entered a no contest plea to criminal charges as part of a written plea bargain that required imposition of a specific prison sentence and included a waiver of the right to appeal the sentence. The Supreme Court ordered the appeal dismissed, concluding “[a]lthough defendant maintains he is not contesting the validity of his bargained plea, he seeks to challenge the very sentence he negotiated as part of the plea.... [W]e conclude that such a claim is, in substance, an attack on the validity of the plea which is not reviewable on appeal because defendant failed to seek and obtain a certificate of probable cause. [Citation.] Further, even if it is assumed that defendant’s claim does not challenge the validity of the plea, the claim still is not reviewable on appeal because the terms of the plea bargain preclude any appeal of the negotiated sentence.” (People v. Panizzon, supra, 13 Cal.4th at p. 89.)
Here, defendant entered his guilty plea in return for a specified prison term and the dismissal of the remaining charges and allegations. Since he failed to obtain a certificate of probable cause before filing this appeal and has not cited any issues that may be asserted without the certificate, we conclude he waived his right to appeal the judgment and sentence in this case.
DISPOSITION
The appeal is dismissed.
WE CONCUR: O’LEARY, J., ARONSON, J.