Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C163879
Sepulveda, J.
Defendant appeals from a judgment entered on his plea. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find no arguable issues and affirm.
On June 4, 2010, defendant was charged by information with one count of second degree robbery (Pen. Code, § 211—count 1), with allegations that he personally and intentionally discharged a firearm and caused great bodily injury (§§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b)-(d), (g)); one count of assault with a firearm (§ 245, subd. (a)(2)—count 2), with allegations that he personally used a firearm and caused great bodily injury (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a)); and one count of unlawful firearm activity (§ 12021, subd. (c)(1)—count 3). The charges stemmed from an incident in Oakland on December 12, 2009, when defendant shot the victim in both thighs after demanding that the victim “empty [his] pockets” during a drug transaction.
All statutory references are to the Penal Code.
On November 10, 2010, defendant pleaded no contest to robbery, and admitted the allegations that he used a firearm within the meaning of section 12022.5, subdivision (a) and caused great bodily injury under section 12022.7, subdivision (a). In entering his plea, defendant completed and signed a form titled “Waiver on Plea of Guilty/No Contest (Felony).” Defendant acknowledged and waived his constitutional trial rights, and also initialed a box next to the statement: “I hereby give up my right to appeal from this conviction, including an appeal from the denial of any pretrial motions.” Defendant and his attorney attested to the court that defendant understood and voluntarily relinquished each specified right. The trial court sentenced defendant on December 23, 2010, to an aggregate eight years in prison and ordered him to pay a restitution fund fine of $1,600 and other fees, in accord with the negotiated disposition.
On February 17, 2011, defendant timely appealed “based on 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)(4).) On February 24, 2011, defendant filed a second notice of appeal that “challenge[d] the validity of the plea or admission.” Defendant requested a certificate of probable cause, claiming that insufficient physical evidence supported his guilt and that the victim’s story changed several times. The trial court denied the request.
There are no meritorious issues to be argued on appeal. In the absence of a certificate of probable cause, and because defendant waived the right to appeal his conviction, we may only consider matters occurring after the plea that do not affect its validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4); People v. Panizzon (1996) 13 Cal.4th 68, 79.) Moreover, defendant’s second notice of appeal purporting to challenge the validity of his plea was untimely. (Cal. Rules of Court, rule 8.308(a).) In any event, the trial court denied defendant’s request for a certificate of probable cause, and the denial is not reviewable on appeal but may only be challenged by writ of mandate. (In re Brown (1973) 9 Cal.3d 679, 683; People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) Because defendant was sentenced pursuant to the terms of his plea agreement, he may not challenge his sentence (People v. Panizzon at p. 79), and we find no independent reason why the terms imposed were unauthorized.
The record demonstrates that defendant was advised of the rights being waived and the consequences of his no contest plea, and specifically that he waived his right to appeal the conviction. The court found the plea to be free and voluntary and that defendant had made a knowing and intelligent waiver of his constitutional rights, and the parties stipulated that there was a factual basis for the plea.
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.