Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR189839
McGuiness, P.J.
Lovell Wayne Owens (appellant) appeals from a judgment entered after he pled no contest to forcible rape (Pen. Code, § 261, subd. (a)(2)) and false imprisonment (§ 236). Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.
All statutory references are to the Penal Code.
Factual and Procedural Background
The facts relating to the offense are taken from the probation report.
On September 18, 1996, Jane Doe opened the front door of her apartment because she had gotten hot while working on her computer in the front room of the apartment. At one point, she went into her bedroom to get her eyeglasses when an unknown man approached her and said, “This is a robbery. Do what I say and you won’t get hurt, ” or words to that effect. The man also told Doe “not to look at him or else he would kill her.” Doe turned around quickly and saw what she believed was a gun concealed under the man’s shirt. The man raped Doe, draped a bedspread over her and “reiterated his command not to look at him.” Appellant then took jewelry and foreign currency from Doe’s bedroom dresser before leaving the apartment.
We refer to the victim by the pseudonym Jane Doe.
Police officers responded and met with the victim. A search produced no leads and the case was eventually suspended but the semen evidence was submitted to the Department of Justice DNA Laboratory for testing. On September 14, 2006, the Department of Justice “got a match from the semen sample” and indicated it matched appellant’s DNA, which had previously been submitted by the Solano County Probation Department. Police detectives arrested appellant at the Solano County Probation Office on October 6, 2006.
A felony complaint was filed on May 17, 2007, charging appellant with forcible rape (§ 261, subd. (a)(2)). The complaint alleged the offense was a serious felony (§ 1192.7, subd. (c)) and that appellant committed the offense during the commission of a burglary (§ 667.61, subds. (a), (b), (d).) On June 7, 2007, an information was filed containing the same allegations as the complaint. Appellant filed various motions, including a motion to dismiss “for violation of speedy trial rights, ” violation of the statute of limitations, and failure to preserve evidence. The trial court denied the motions. On September 4, 2009, the People filed an amended information, adding the following allegations relating to the statute of limitations: “The District Attorney alleges that prosecution of the above crime is commenced pursuant to Penal Code section 803, subdivision (g), and further alleges: [¶] Defendant’s identity was ‘conclusively established’ by DNA evidence; [¶] A complaint under case number VCR186072 and VCR189839 was filed within one year of that date; and [¶] The biological evidence collected in this case was analyzed for DNA type by January 01, 2004.
At a hearing on September 4, 2009, the People amended the information again to add a count of false imprisonment (§ 236, count two). The prosecutor announced the parties had reached a plea agreement whereby appellant would plead no contest or guilty to both counts, admit the tolling of the statute of limitations, waive all issues relating to the statute of limitations for purposes of appeal, and register as a sex offender for life, in exchange for a sentence of 11 years in state prison and a dismissal of the special allegation under section 667.61. The prosecutor stated the parties agreed there was a factual basis for the plea based on the transcript from the preliminary hearing. Defense counsel confirmed this was “a correct statement.” Appellant waived his constitutional rights and pleaded no contest to counts one and two and admitted the statute of limitations allegations. The court sentenced appellant to 11 years in state prison. Appellant filed a timely notice of appeal and requested a certificate of probable cause. The court denied the request for a certificate of probable cause.
Discussion
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. Section 1237.5 provides: “No 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.” Appellant filed a written statement but did not receive a certificate of probable cause. Thus, he is precluded from arguing on appeal that his plea was invalid.
In any event, a defendant who wishes to withdraw a guilty plea must make a showing of good cause to do so by clear and convincing evidence. (See People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) There is no such evidence here. The record shows appellant initialed and signed a written waiver form acknowledging he understood his constitutional rights and was “freely and voluntarily” giving up those rights. At the change of plea hearing, he stated he read and understood the waiver form and had signed and initialed it. He stated he had discussed the plea agreement with his attorney and that no one had threatened him to enter into the agreement. He stated he understood that he was giving up his constitutional rights, including the right to a jury trial, the right to confront witnesses and present a defense, and the right to remain silent. He stated he understood that a plea of no contest would be treated the same as a guilty plea and that he would be sentenced to 11 years in state prison.
In his request for a certificate of probable cause, appellant suggests he did not understand he was going to be sentenced to 11 years in state prison, and that he was coerced or pressured into entering the plea. However, there is nothing in the record supporting his position. To the contrary, he stated he understood the plea agreement and that no one had threatened him to enter into the agreement. The written waiver form, which he stated he had read and understood, stated he was entering his plea “freely and voluntarily.” The form specified appellant was going to receive a 11 year sentence, and he acknowledged at the change of plea hearing that he understood he was being sentenced to 11 years in state prison.
He states he was told “that if I went to trail (sic) I would loose (sic) and would never see my wife or kids or family again.” He further states, “My understanding was not that I was signing for a count one and count two still getting 6 years, still not getting 3 years, that would leave three.”
Appellant also suggests in his request for a certificate of probable cause that his attorney provided him with ineffective assistance of counsel by not “properly” filing motions and not defending him “appropriately.” Appellant has not made the requisite showing that his attorney’s performance “fell below an objective standard of reasonableness under prevailing professional norms, ” or that “counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result.” (People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, and In re Wilson (1992) 3 Cal.4th 945, 950.)
We conclude there is no clear and convincing evidence of good cause to allow appellant to withdraw his no contest plea. Appellant was adequately represented by counsel at every stage of the proceedings. The parties stipulated the case was not barred by the statute of limitations. There was a factual basis for the plea. There was no sentencing error. There are no issues that require further briefing.
Disposition
The judgment is affirmed.
We concur: Pollak, S., Siggins, J.