Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR06-71582-02
Margulies, J.
Gabriel Moises Sanchez appeals from a judgment following his plea of nolo contendere and imposition of sentence. 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 a supplemental brief with the court. No supplemental brief has been received. 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 nolo contendere pleas, 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.
An information was filed on August 30 2006, in Mendocino County charging defendant with three counts of robbery (Pen. Code, § 211; counts 1, 2, and 3), one count of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1); count 4), and one count of unlawful participation in a criminal street gang (§ 186.22, subd. (a); count 5). It was alleged as to counts 1 and 4 that defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and inflicted great bodily injury (§§ 12022.7, subd. (a), 12022, subd. (b)(1)). As to count 1, the information further alleged that defendant personally used a deadly or dangerous weapon.
All further statutory references are to the Penal Code, unless otherwise noted.
Defendant went AWOL from the United States Army to attend his grandmother’s funeral. After the conclusion of the funeral, defendant and two others were standing by a silver P.T. Cruiser as three minors, ages 11 to 14, walked toward them. According to the victim, the oldest of the three, defendant and his companions began asking them if they were Norteños or if they were gang affiliated. Although none of the minors were gang affiliated, defendant stopped the victim and told him to take off his shirt. The victim took off his shirt, after which defendant demanded the victim’s watch and a necklace he was wearing. The victim complied because defendant had a beer bottle in his hand. Defendant then demanded that another one of the minors remove his shirt as well. The second minor took off his shirt and threw it to the ground. Upon seeing that the third minor, the victim’s younger brother, had on red underwear, defendant demanded that he take off the underwear. The victim stepped in between the defendant and his brother, at which point defendant hit the victim on the right side of his face with the beer bottle, cutting him below the ear and on the arm.
Following the preliminary hearing, defendant filed a motion to dismiss the robbery charges alleged in counts 2 and 3 (§ 995). The court granted the motion to dismiss and reduced bail. Defendant later entered into a negotiated disposition whereby he entered nolo contendere pleas to the remaining robbery count, assault by means of force likely to cause great bodily injury, and participation in a criminal street gang. The other allegations were dismissed, but the great bodily injury allegation was dismissed with a Harvey waiver. The court indicated that it would impose a sentence of no more than six years eight months.
People v. Harvey (1979) 25 Cal.3d 754, 758.
At sentencing, the court denied probation and imposed the midterm of three years on the robbery charge plus an eight-month consecutive sentence (one-third the midterm) on the participation in a criminal street gang charge. The court stayed the three-year midterm on the assault charge pursuant to section 654. Defendant received credits of 133 actual days and 19 conduct days for a total of 152 presentence custody credits. The court ordered defendant to pay a restitution fine of $800 (§ 1202.4) and suspended an $800 fine pending completion of parole (§ 1202.45).
DISCUSSION
We have reviewed the record on appeal. By entering pleas 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 his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his pleas; 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 pleas were entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) Defendant did not obtain a certificate of probable cause.
Defendant was represented by counsel throughout the proceedings. We further find no support in the record for defendant’s claims on appeal of ineffective assistance of counsel.
To the extent defendant’s claims are supported by evidence outside of the record, they are properly addressed, if at all, in a petition for writ of habeas corpus.
We find no meritorious sentencing issues that would require reversal of the judgment. The court neither imposed a sentence that exceeded the “top” indicated by the court nor abused its discretion by denying probation. The restitution fines it imposed were also appropriate.
There are no issues that require further briefing. The judgment is affirmed.
We concur: Stein, P.J., Swager, J.