Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. EE504255
Premo, J.
Defendant Albert Sanchez was charged by information with resisting an officer (Pen. Code, § 69, a felony, count 1), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), a felony, count 2), displaying false registration (Veh. Code, § 4462.5, a misdemeanor, count 3), and battery upon an officer (Pen. Code, §§ 242, 243, subd. (b), a misdemeanor, count 4). In his first trial, a jury found defendant guilty of counts 1 and 2, not guilty of count 3, and guilty of the lesser included offense of battery upon an officer without injury (id. § 243, subd. (b)). He was sentenced to three years and eight months in prison. This court reversed the judgment on appeal. (People v. Sanchez (Jun. 12, 2007) H029254 [nonpub. opn.].) By the time his conviction was reversed, defendant had served his sentence and had been released from custody.
Defendant was allowed to remain out of custody on his own recognizance until he failed to appear the day set for retrial, January 14, 2008. A bench warrant was issued, defendant turned himself in, and he was taken into custody. Thereafter, defendant pleaded no contest to misdemeanor violations of counts 1 and 2 in exchange for the dismissal of the remaining charge. The trial court sentenced defendant to a concurrent term of 12 months in county jail on both counts with credit for time served. The court imposed a $100 restitution fund fine (Pen. Code, § 1202.4) and a $40 court security fee (id. § 1465.8). He was released from custody with no period of probation.
Defendant filed a timely notice of appeal and request for certificate of probable cause. (Pen. Code, § 1237.) The trial court denied the request for a certificate of probable cause.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Defendant has submitted a letter raising several issues he asks this court to consider.
I. Factual and Procedural Background
Our summary of the facts is taken from the statement of facts contained in People v. Sanchez (Jun. 12, 2007, H029254 [nonpub. opn.]).
On or about April 11, 2005, defendant was approached by uniformed Sunnyvale Police Officers who had observed that the vehicle defendant occupied had a false registration tag. According to the officers, defendant kept putting his hands in his pockets and became agitated. When defendant kept reaching into his pockets the officers grabbed defendant and told him he was being detained, at which point defendant broke free and ran away. The officers pursued him a short way and brought him to the ground. After a struggle, defendant was subdued and handcuffed. A small plastic baggie containing amphetamine was found at the scene. Defendant denied that he had run away and denied struggling with the officers.
II. Discussion
In his letter to the court defendant maintains that his attorney had a conflict of interest in that his counsel did nothing for him and defendant was required to speak on his own behalf. He maintains that the trial court erred in denying his Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) Defendant also claims the judge was prejudiced against him because the judge denied his request to have a graphic animation of the crime prepared to show at trial. We cannot reach these issues. Absent a certificate of probable cause, the appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings (Pen. Code, § 1237.5, subd. (a)), which is the focus of defendant’s arguments. The appeal may only be based upon matters that arose after entry of the plea and do not affect the plea’s validity. (Cal. Rules of Court, rule 8.304(b)(4).) With this scope of review in mind, we have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436and People v. Kelly (2006) 40 Cal.4th 106 and conclude that there is no arguable issue on appeal.
Defendant also argues that the district attorney has not taken steps to eliminate his record of having been in prison and seeing to it that the blood samples that were taken from him are destroyed. According to defendant, these were conditions of his plea agreement. This court cannot review this claim as the alleged breach does not appear in the record on appeal.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.