Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA071979, Tia G. Fisher, Judge. Appeal dismissed.
Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
v.
JACKSON, J.
INTRODUCTION
Defendant Joe Michael Perea appeals from the judgment entered following his negotiated plea of no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and admission of personally using a firearm in committing the offense (§ 12022.5, subd. (a)). Prior to sentencing, defendant unsuccessfully sought to have his plea withdrawn. We dismiss the appeal.
All further statutory references are to the Penal Code, unless otherwise indicated.
PROCEDURAL BACKGROUND
Defendant was charged by second amended information with first degree murder (§ 187, subd. (a); count 1), attempted murder (§§ 187, 664; count 2), and possession of a firearm with a prior conviction (§ 12021.1; count 3). As to the murder and attempted murder counts, the information specially alleged defendant had personally used a firearm (§ 12022.53, subd. (b)), had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and a serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). As to the murder count alone, it was alleged defendant had caused great bodily injury or death as a result of discharging the firearm (§ 12022.53, subd. (d)). As to all three counts, the information specially alleged the offenses were committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(A), 186.22, subd. (b)(4)), and defendant had previously served separate prison terms for two felonies (§ 667.5, subd. (b)).
Following a jury trial, defendant was found not guilty of first degree murder, attempted murder, the lesser-included offense of attempted voluntary manslaughter (count 2), and possession of a firearm with a prior conviction. The jury deadlocked on the lesser-included offense of second degree murder (count 1) and the court declared a mistrial.
After jury trial commenced on the charge of second degree murder (count 1) and the remaining special allegations, the trial court granted defendant’s motion for a mistrial. As the result of a negotiated agreement, defendant pleaded no contest to voluntary manslaughter (amended count 4), and admitted an amended firearm-use allegation (§ 12022.5, subd. (a)), as well as one prior strike, one prior serious felony and two prior prison term enhancement allegations. In return, defendant was to receive an aggregated state prison sentence of 16 years.
At sentencing, defendant moved to withdraw his plea arguing it was not knowing and intelligent because he did not have sufficient time to consider the plea offer. Defendant also claimed the prosecutor had abused his authority by refusing to offer him less than a 16-year state prison commitment and by requiring him to admit the firearm-use allegation as part of the agreement.
After listening to the argument of counsel and defendant’s statement, and reviewing the plea hearing transcript, the trial court denied the motion. Defendant was sentenced in accordance with the plea agreement to an aggregated state prison term of 16 years: the lower term of three years for voluntary manslaughter, doubled under the Three Strikes law to six years; the lower term of three years for the section 12022.5, subdivision (a), firearm-use enhancement; five years for the prior serious felony enhancement; and one year for each of the two prior prison term enhancements. The remaining count and accompanying enhancements were dismissed.
Defendant received presentence custody credit of 1,015 days (883 actual days and 132 days of conduct credit). The trial court ordered defendant to pay a $20 security assessment and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45. Defendant was also ordered to pay victim restitution in the amount of $638.14 for the funeral expenses of the victim, Carlos Garcia, and $4,361.86 to the State Victim Compensation Board.
Defendant timely filed a notice of appeal. However, the record does not show that he obtained a certificate of probable cause. We appointed counsel to represent defendant on appeal.
After examination of the record, counsel filed an opening brief in which no issues were raised. On May 13, 2008, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.
In his notice of appeal, defendant contends his motion to withdraw his plea should have been granted. As a potential ground for appeal, this claim does not survive defendant’s no contest plea and the failure to obtain a certificate of probable cause (see In re Chavez (2003) 30 Cal.4th 643, 650-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1099).
We have examined the entire record and are satisfied defendant’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The appeal is dismissed.
We concur: PERLUSS, P. J., WOODS, J.