P. v. Aquino
Filed 4/19/11 P. v. Aquino CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA DARLENE AQUINO, Defendant and Appellant. | E051439 (Super.Ct.No. FSB903647) OPINION |
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In a plea to the court, defendant and appellant Christina Darlene Aquino pled guilty to two counts of robbery, two counts of assault with a firearm, one count of assault with deadly weapon by means likely to produce great bodily injury, one count of attempted robbery, and one count of shooting at an occupied motor vehicle. Defendant also admitted the enhancement attached to four of the charges that a principal was armed with a firearm. In return, defendant was sentenced to the court’s indicated sentence of five years in state prison with credit for time served. Defendant appeals from the judgment. We affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
An amended felony complaint was filed against defendant on September 18, 2009. The amended complaint was based on incidents that occurred on July 26, 2009, and August 8 and 10, 2009. A preliminary hearing was held on November 12, 2009. Several witnesses offered testimony implicating defendant and her cohort in committing several robberies, assaults with a firearm, and shooting at an occupied motor vehicle against three victims. Defendant had admitted setting up the victims to be robbed by telling them to meet her at a set location. Upon arriving at the set location, the victims were approached by a male subject with a shotgun. While pointing the shotgun at the victims, the subject demanded the victims’ belongings. During one incident, the shotgun went off when the victim grabbed for it. During another incident, as the victim started his vehicle, a gunshot went through the driver’s side window and struck the victim on the side of his head.
Following the preliminary hearing, defendant was charged in an information with two counts of robbery (Pen. Code, § 211; counts 1 and 7); two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 2 and 6); assault with deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 3); one count of attempted robbery (Pen. Code, §§ 664/211; count 4); and one count of shooting at an occupied motor vehicle (Pen. Code, § 246; count 5). The information also alleged that in the commission of counts 1, 4, 5, and 7 a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
On April 14, 2010, pursuant to a written plea agreement to the court, defendant pled to the sheet and admitted all the enhancement allegations. The court reviewed the plea form with defendant and explained the consequences of pleading guilty. The court also asked defendant whether she had placed her initials on the plea form, signed the plea form, and understood the plea. Defendant replied in the affirmative. The court also asked defendant whether she required additional time with her attorney before she pled guilty or whether she had any questions. Defendant replied in the negative. The court also asked defendant whether she understood her constitutional rights and whether she was willing to give up those rights so that she could plead guilty and admit all the enhancement allegations. Defendant replied in the affirmative. The court further asked defendant whether she understood that she would be giving up her right to appeal any rulings that had been made. Defendant replied in the affirmative. The court found that defendant intelligently and voluntarily waived her constitutional rights and that her plea and admissions were free and voluntary.
On May 14, 2010, defendant was sentenced to the court’s indicated total sentence of five years in state prison with credit for time served. To reach the total term, the court imposed one year (one-third the middle term of three years) on count 1; a consecutive one year (one-third the middle term of three years) on count 7; and a consecutive low term of three years on count 5. All other counts and allegations were stayed pursuant to Penal Code section 654.
On July 23, 2010, defendant filed a notice of appeal based on the sentence or other matters occurring after the plea, as well as challenging the validity of the plea. Defendant further claimed that the plea was “induced by misrepresentation.” Defendant also requested a certificate of probable cause, claiming that she had received ineffective assistance of counsel, she was mentally incompetent at the time of the plea, and she had a personal conflict with the district attorney. Her request was denied without prejudice.
II
DISCUSSION
Defendant appealed and, upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and she has done so. In her one-page supplemental letter brief, defendant generally contends that she was emotionally and mentally unstable when she pled guilty; that she believed “all [her] time would be r[u]n concurrent”; that she received ineffective assistance of counsel; and that she was unaware of the enhancements. Defendant does not support her contentions with any argument or citations. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
“When a defendant pleads not guilty and is convicted as the result of a trial, in general any issue bearing on the determination of guilt and apparent from the record is cognizable on appeal. (See [Pen. Code,] § 1237.) By contrast, when a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the ‘jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.’ [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 649.) In addition, “[Penal Code] section 1237.5 authorizes an appeal [following a guilty plea] only as to a particular category of issues,” and to have these issues considered on appeal, a defendant must first take the additional procedural step of obtaining a certificate of probable cause. (Id. at p. 650.)
All of the issues raised in defendant’s notice of appeal and supplemental brief concern the determination of guilt or innocence or are not reviewable under Penal Code section 1237.5. As set forth above, defendant requested a certificate of probable cause to appeal, but her request was denied by the trial court. “[W]here, as here, a certificate of probable cause has been denied, the appeal is not operative and the denial of the certificate must be reviewed by writ of mandate.” (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) Here, defendant did not challenge the denial by way of writ of mandate, so she is precluded from obtaining review on the merits of issues challenging the legality of the proceedings. (See People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097.) In other words, in the absence of a certificate of probable cause, we may not consider the validity of the plea; whether the change of plea was knowingly, intelligently, or voluntarily made; or whether defendant was deprived of effective assistance of counsel. (Pen. Code, § 1237.5; see also People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
Furthermore, “‘[e]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793.) Here, defendant fails to make any legal argument or cite to any authority in support of her claims. Thus, her contentions are waived.
In any event, defendant has failed to show that her counsel failed to act in a manner expected of reasonably competent attorneys or that she had suffered prejudice as a result of her counsel’s competency. (People v. Wash (1993) 6 Cal.4th 215, 269; Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
The record shows defendant was thoroughly advised of the rights being waived and the consequences of pleading guilty. There is substantial evidence to support the trial court’s finding that the plea was knowing, intelligent, and voluntary. In addition, the sentence was authorized and was imposed in accordance with the terms of the plea agreement.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
CODRINGTON
J.
