Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 09CM0317, of Kings County. Louis F. Bissig, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J., and Hill, J.
In August 2008, Krista Henderson, Dara Pirozzi and appellant, Daniel Fernando Palomino, were at the Tachi Palace Casino in Lemoore when Henderson argued with Palomino and left with Pirozzi, leaving Palomino behind. After Henderson changed her mind and returned to the casino, Palomino broke a side mirror off her car.
On February 17, 2009, at approximately 11:59 p.m., a Lemoore police officer arrived at Henderson’s apartment in response to “911 hang-up” and found the front door open. Upon entering the apartment the officer encountered Palomino with his arms covered with blood. Pirozzi and Henderson were in a bathroom. Henderson was covered with blood, crying and holding a towel to her face. She had a large laceration on her lip and another one on the bridge of her nose. Henderson told the officer that she and Pirozzi were drinking with Palomino when she began arguing with him. The next thing she remembered, she woke up covered in blood.
Palomino stated he was drinking with the two women when they began arguing with him over the incident at the casino. Palomino became frustrated and threw a pint-sized glass across the room not knowing that Henderson was in the way and it struck her in the face.
Pirozzi told the officer that after the trio began arguing, Palomino slapped Henderson on the arm and pushed her. When Pirozzi tried to get between Palomino and Henderson, Palomino began throwing things. Pirozzi did not see Palomino hit Henderson with his fists or any object.
Pirozzi was re-interviewed the following day and at that time stated that after she attempted to prevent Palomino from assaulting Henderson, he pushed her backwards and punched Henderson four times in the face. Palomino then threw a cup at Henderson.
Henderson’s injuries included three fractures to her nose that required reconstructive surgery, a concussion, five stitches to her lip, and damage to four teeth that required replacing two of them.
On February 23, 2009, Palomino waived his right to a preliminary hearing.
On March 6, 2009, the district attorney filed an information charging Palomino with felony assault with a deadly weapon (count 1/Pen. Code, § 245, subd. a)(1)), felony inflicting corporal injury on a cohabitant (count 2/§ 273.5,subd. (a)), misdemeanor battery (count 3/§ 242), and misdemeanor vandalism (count 4/§ 594, subd. (a)) Counts 1 and 2 also alleged a great bodily injury enhancement (§ 12022.7, subd. (a)) and a personal use arming enhancement (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code.
On March 9, 2009, Palomino substituted retained counsel for his appointed counsel.
On April 20, 2009, Palomino pled guilty to count 2 and admitted the great bodily injury enhancement in that count in exchange for the dismissal of the remaining counts and allegations.
On May 28, 2009, prior to pronouncing judgment, defense counsel requested a continuance to allow him to get the victim’s medical records in order to determine whether to challenge the amount of restitution claimed by the victim and to confirm the nature and extent of her injuries. The court denied the request and sentenced Palomino to an aggregate five-year term, the mitigated term of two years on the substantive offense and a three-year enhancement term. Right before the hearing ended, defense counsel advised the court that “[Palomino’s] family [was] asking if the Court [would] set bail pending appeal[.]” The court denied the request.
Palomino’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed on November 12, 2009, Palomino contends: 1) the court denied him his right to due process when it denied defense counsel’s motion on May 28, 2009, to continue the sentencing hearing so he could obtain the victim’s medical records; 2) his original counsel provided him ineffective representation by not allowing him to see the evidence against him, convincing him to waive his preliminary hearing and plead guilty, and by not providing information to his retained counsel; 3) the court erred in denying his request for bail on appeal; and 4) he may not have received a fair and impartial sentence because the victim’s brother is employed in law enforcement in the area where Palomino committed his offense.
There is no merit to any of these contentions. At Palomino’s sentencing hearing, the court ordered Palomino to pay the victim $26,500.80 in direct restitution as recommended by the probation department. However, at the conclusion of the hearing the court retained jurisdiction to assess additional restitution or modify the restitution order upon request of either party. Thus, Palomino should be able to obtain these records if he requests a hearing to challenge the court’s restitution order.
Further, it is unlikely the victim’s medical records would have assisted Palomino in arguing for a lesser sentence because it was undisputed the victim suffered severe injuries and she testified regarding the extent of her injuries at Palomino’s sentencing hearing. Moreover, Palomino’s admission of the great bodily injury enhancement made him ineligible for probation absent a finding of unusual circumstances (§ 1203, subd. (e)(3).) and the court sentenced Palomino to the lowest prison term it could impose pursuant to his plea agreement. Accordingly, we reject Palomino’s contention that he was denied his right to due process by the court’s denial of his request to continue his sentencing hearing.
There is also no merit to Palomino’s ineffective assistance of counsel claim. Section 1237.5 states:
“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.”
“‘Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); 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. Emery (2006) 140 Cal.App.4th 560, 564.)
Since Palomino did not obtain a certificate of probable cause and his ineffective assistance of counsel claim does not raise either of the two types of issues noted above, his ineffective assistance of claims are not cognizable on appeal. (People v. Emery, supra, 140 Cal.App.4th at 564.)
Bail was a matter of discretion in the instant case because Palomino was convicted of a felony. (§ 1272(3).) “When the admission to bail is a matter of discretion, the Court or officer to whom the application is made must require reasonable notice thereof to be given to the District Attorney of the county.” (§ 1274, italics added.) The record, here, indicates that no notice of the application for bail was given to the district attorney. Thus we conclude that the court did not abuse its discretion when it denied Palomino’s request for bail on appeal because he did not comply with section 1274’s notice requirement.
Finally, Palomino’s claim that the victim’s brother’s employment in law enforcement affected the fairness of the proceedings is not cognizable on appeal because it relies on facts outside of the record. (In re Rogers (1980) 28 Cal.3d 429, 237, fn. 6). In any event, our review of the record did not disclose any evidence that the proceedings were impacted in any way by this alleged circumstance.
Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.