Opinion
H038622
02-19-2013
THE PEOPLE, Plaintiff and Respondent, v. FELIPE JESUS ZAMORA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County
Super. Ct. No. SS120407)
An amended complaint charged defendant Felipe Jesus Zamora and two codefendants with a number of allegedly gang-related crimes. Defendant Zamora was charged with possession of a short barreled rifle or shotgun (Pen. Code, § 33215, count 1); unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2); receiving or concealing stolen property (§ 496, subd. (a), count 4), and participation in a criminal street gang (§ 186.22, subd. (a), count 5). As to counts 1, 2, and 4, the amended complaint alleged that defendant had committed the crimes for the benefit of a criminal street gang. (Id. subd. (b)(1)(A).) The facts underlying these charges do not appear in the record.
Further unspecified section references are to the Penal Code.
The amended complaint further alleged that defendant had suffered a prior strike conviction (§ 1170.12, subd. (c)(1)) and two prison priors (§ 667.5, subd. (b)). It also alleged that, because the current offenses were serious or violent felonies, defendant was ineligible for sentencing to the county jail pursuant to section 1170, subdivision (h)(2).
Defendant entered into a plea agreement under which he pleaded no contest to count 2, admitted the strike prior, waived all custody credit, and agreed that the sentencing judge could consider the entire factual background of the case when imposing sentence (the Harvey waiver). Defendant understood that, in exchange for his plea, the trial court would dismiss all other charges and allegations, impose a sentence of no more than 32 months in prison, and a restitution fine of no less than $200. The trial court sentenced defendant to the agreed-upon 32 months in prison, calculated by imposing the mitigated term for count 2, doubled for the strike. The court dismissed all other charges and allegations and imposed a restitution fine of $500 (§ 1202.4, subd. (b)(2)), a parole revocation fine of $500 (§ 1202.45), and mandatory court security and criminal conviction fees (§ 1465.8, subd. (a)(1); Gov. Code, § 70373). Defendant's notice of appeal specifies that it is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)
People v. Harvey (1979) 25 Cal.3d 754.
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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. The 30 days have expired and we have received no written argument from defendant.
I. DISCUSSION
Defendant has not obtained a certificate of probable cause, which is required by section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. The certificate is not required when the notice of appeal states, as this one does, that the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Accordingly, we have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, focusing upon grounds for appeal arising after entry of the plea. Having done so, we conclude that there is no arguable issue on appeal.
II. DISPOSITION
The judgment is affirmed.
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Premo, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.