Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 1220981. Donald E. Shaver, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Cornell, J.
In November 2006, the victim’s mother Christy H. lived with appellant, Christopher Lee Santos. Around November 20, 2006, she took her 11-month-old daughter to a hospital for a fever and was informed that her daughter had perianal warts around her anus. Santos was also diagnosed with venereal warts. In a police interview, Santos stated that a “couple [of] days” after Thanksgiving he was in his boxer shorts, bouncing the victim on his lap, when his erect penis came out of his shorts and touched the victim’s anus after the snaps on her pajamas came undone.
Following a preliminary hearing, on February 5, 2007, the district attorney filed an information charging Santos with one count of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and a great bodily injury enhancement (§ 667.61, subd. (e)).
All further statutory references are to the Penal Code.
On March 7, 2007, defense counsel filed a motion to dismiss the great bodily injury enhancement. On March 8, 2007, the prosecution filed a response. On March 13, 2007, the court denied the motion to dismiss.
On March 26, 2007, the court heard and denied Santos’s Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
On March 28, 2007, Santos pled no contest to the lewd and lascivious conduct charge in exchange for the dismissal of the great bodily injury enhancement and a stipulated upper term of eight years. After Santos waived a probation report, the court sentenced him to the stipulated eight-year term and imposed a $1,600 restitution fine and a $1,600 parole revocation term.
Santos’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 August 8, 2007, Santos raises the following issues: 1) the growths on the victim were never tested to determine what they really were; 2) his defense counsel failed to speak with Dan Shepard from Child Protective Services or the Modesto Police regarding the report made by the victim’s mother on November 20, 2006; 3) his defense counsel failed to look at important information Santos gave him regarding other possible explanations for the growths on the victim; 4) the court erred when it imposed the upper term because Santos had never been in trouble before. There is no merit to any of these issues.
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, or a revocation of probation following an admission of violation, 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.”
“Section 1237.5 is an exception to the general rule that appeals may not be brought by defendants who have pleaded guilty or nolo contendere. This section provides the general rule that defendants who have pleaded guilty must obtain a certificate of probable cause before they may bring an appeal.” (People v. Hunter (2002) 100 Cal.App.4th 37, 41.)
“Thus, in [an] appeal, defendant may raise only those issues cognizable on appeal when a defendant obtains a certificate of probable cause under section 1237.5. ‘“Obtaining a certificate of probable cause [however] does not make cognizable those issues which have been waived by a plea of guilty.”’ [Citation.] Under section 1237.5, ‘only “constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” survive a guilty plea.’ [Citation.]” (People v. Hunter, supra, 100 Cal.App.4th 37, 41-42.)
“‘By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] “[I]ssues which merely go to the guilt or innocence of a defendant are ‘removed from consideration’ by entry of the plea.” [Citation.] Thus, claims involving sufficiency of the evidence [citation], voluntariness of an extrajudicial statement [citation], a trial court’s refusal to disclose the identity of an informant [citation], fairness of a pretrial lineup [citation], and other such issues have been held not cognizable on appeal following a guilty plea.” (Hunter, supra, 100 Cal.App.4th 37, 42.)
Santos did not obtain a certificate of probable cause. In any event, the first three issues Santos raises are not cognizable on appeal, with or without a certificate of probable cause, because they go to the merits of his guilty plea. Additionally, the great bodily injury enhancement subjected Santos to a potential indeterminate term of 15 years to life. (§ 667.61, subds. (b) & (e).) The court did not abuse its discretion when it imposed the aggravated term because Santos agreed to this term as part of his plea bargain, presumably to avoid a potential life term by having the great bodily injury enhancement dismissed.
Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.