Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD191079, David J. Danielsen, Judge.
McINTYRE, J.
Mark G. Shamblen entered negotiated guilty pleas to rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) and unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)). In the written plea agreement, Shamblen agreed to have the judge determine the existence or non-existence of any aggravating fact that could be used to increase the sentence. (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely waiver).) The court sentenced him to prison for the eight-year upper term for rape of an intoxicated person and stayed sentence for unlawful sexual intercourse (Pen. Code, § 654). The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
FACTS
Considering the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred: On January 25, 2005, a 17-year old girl came home intoxicated. Shamblen rented a room in the home of the girl's mother. The 17-year old apparently passed out on a bed and when she awoke, Shamblen was on top of her with his penis in her vagina. She ran to the home of a neighbor, who called police. Because Shamblen entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Shamblen's guilty pleas were knowing and intelligent; (2) whether Shamblen's written Blakely waiver was effective; and (3) whether the trial court abused its discretion in imposing the upper term based of a finding that the victim was particularly vulnerable.
We granted Shamblen permission to file a brief on his own behalf. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Shamblen on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.