P. v. Gonzalez

Filed 3/15/07 P. v. Gonzalez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On October 2, 2006, appellant, Gilberto Gonzalez, pled no contest to an allegation that while he was a prison inmate, he assaulted another inmate with a deadly weapon by means of force likely to cause great bodily injury (Pen. Code,  4501). Appellant admitted an allegation that he had a prior serious felony conviction within the meaning of the three strikes law. Under the terms of the plea agreement, appellant would receive the mitigated prison term of two years which would be doubled pursuant to the three strikes law and made consecutive to the term he was serving in prison. Appellant waived his right to a formal probation report and was sentenced to the two years, which was doubled to four years pursuant to the three strikes law.^[1] The court made appellants sentence fully consecutive to the term he was serving in prison. Appellant has not obtained a certificate of probable cause.

FACTS

Corcoran Correctional Officer Concepcion Amor Aguilar was working as a control booth officer at 11:20 a.m. on March 24, 2006.^[2] From that position, Aguilar could view a physical altercation between appellant and Inmate Stifes in cell 58. Stifes entered cell 58 with a mattress and began talking to appellant. Appellant ran toward Stifes and began to strike Stifes with closed fists. Stifes was still holding his mattress in one arm. Stifes fell back against the door and then to the ground where he was severely beaten. Appellants attack ended only after he was stopped by correctional officers.

Stifes was taken to the hospital trauma room. He had a laceration over one eye and multiple cuts and lacerations on his arm and the left side of his back. Stifes suffered puncture wounds to his left shoulder, the underarm of the left shoulder, the left elbow, the chest, and two to the back of his neck. Stifes was still actively bleeding in the trauma room from his injuries.

DISCUSSION

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. On December 12, 2006, we invited appellant to submit a letter stating any grounds on appeal he would want this court to consider.

Appellant replied with a letter stating that he was mentally incompetent when he entered his plea of no contest because he had not taken his prescribed medication. There is no way for us to evaluate this contention on direct appeal. It is elementary that the function of an appellate court in reviewing the judgment of the trial court on direct appeal is limited to a consideration of matters contained in the record of the trial proceedings. (People v. Landers (1976) 59 Cal.App.3d 846, 850.) There is no evidence of appellants factual contention in the appellate record.

A guilty plea is, for most purposes, the legal equivalent of a jurys guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)

Furthermore, appellant has failed to obtain a certificate of probable cause. Appellant is, in effect, challenging the validity of his plea. Without a certificate of probable cause, however, our review is limited to search and seizure or sentencing issues. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) There is no search and seizure or sentencing issue in the instant action.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Kane, J.

^[1] Appellant was fully advised of the consequences of his plea and given complete advisements of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.

^[2] The facts are derived from the preliminary hearing transcript.