P. v. Ocegueda

Filed 4/18/07 P. v. Ocegueda CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:^*

Appellant Henry Ocegueda appeals from the judgment entered following his plea of no contest to the charge of first degree murder (Pen. Code, 187 subd. (a))^[1]and the allegation that a principal was armed with a firearm ( 12022, subd. (a)(1)).^[2] In accordance with appellants plea bargain, the trial court sentenced appellant to 26 years to life, consisting of 25 years to life for the murder and one year for the firearm enhancement. We appointed counsel to represent appellant on this appeal.

After examination of the record, counsel filed an Opening Brief containing an acknowledgment that he had been unable to find any arguable issues. On October 16, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.

Because appellant entered a plea to the charges, we glean the facts of his case from the transcript of the preliminary hearing. Detective David Cortez of the Los Angeles Police Department testified that on November 26, 2004, he began investigating the drive-by shooting death of Annie Romero in territory claimed by the West Side Wilmas gang. Two males were also shot. Several days later he spoke with appellant at the police station. After appellant waived his Miranda^[3]rights, he admitted being the driver of the car from which the shots were fired. He later led police to the abandoned car used in the shooting. Appellant admitted being a member of the East Side Wilmas gang.

An information charged appellant with one count of murder and two counts of attempted murder. The information included allegations in all counts of firearm use within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). It was further alleged that the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A).

At a pretrial proceeding on the day before jury selection, the trial court allowed appellant some time to think about a plea offer, which appellant ultimately accepted. After the trial court took appellants waivers, appellants plea of no contest to first degree murder and his admission of a firearm allegation in violation of section 12022, subdivision (a)(1) were entered. Appellant received a three-year concurrent sentence on the gang enhancement, and the attempted murder counts were dismissed.

At sentencing, appellant moved to withdraw his plea. Appellants counsel for purposes of the motion told the court that his investigation had revealed that the motivation to accept the plea offer had come solely from appellant. Appellants only reason for wishing to withdraw the plea was that if he was going to get a life sentence, that he would accept that life sentence after a trial, but would not want to admit to it. Counsel acknowledged he had no argument against the plea being voluntary, intelligent, and knowing. The court denied the motion, finding there was no legal basis to set aside the plea.

Appellant filed a notice of appeal stating that he wished to raise the following points: an improper and lack of understanding of the plea agreement, insufficiency of the evidence to sustain a verdict, and court erred in sentencing. Appellant did not file a request for a certificate of probable cause.

It is well settled that an appeal following a plea of guilty or no contest that challenges the validity of the plea is not operative unless the appellant obtains a certificate of probable cause pursuant to section 1237.5.^[4] (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez); People v. McEwan (2007) 147 Cal.App.4th 173, 177.) California Rules of Court, rule 8.304^[5]provides that, in addition to filing a notice of appeal, a defendant appealing from a judgment after a plea of guilty or nolo contendere must file the statement required by section 1237.5 for issuance of a certificate of probable cause. (Rule 8.304(b)(1).) The rules further provide that if a defendant does not file the statement required by section 1237.5, or if the superior court denies a certificate of probable cause, the appeal is Inoperative. (Rule 8.304(b)(3).) The only exceptions to the certificate requirement occur when appeals are based on the denial of a motion to suppress evidence under section 1538.5, or they are based on grounds that arose after the defendant entered the plea and that do not affect the pleas validity. (Rule 8.304(b)(4).)

The first two grounds on which appellant appeals clearly challenge the validity of the plea. Therefore, any appeal based on these grounds is inoperative, and his appeal on these issues must be dismissed. (Mendez, supra, 19 Cal.4th at pp. 1095-1096 [interpreting former rule 31(d), which corresponds to current rule 8.304(b)(1)-(3)].) Mendez held that section 1237.5 and its implementing rules of court should be applied in a strict manner. (Mendez, at p. 1098.)

The same reasoning applies to appellants last issue. Because appellants sentence corresponds exactly to his plea-bargained sentence, appellants claim of sentencing error appears to attack the validity of his plea. (See People v. Panizzon (1996) 13 Cal.4th 68, 79 [challenge to negotiated sentence imposed as part of plea bargain is properly viewed as challenge to validity of the plea].) Even if his claim were to be construed as going to the noncertificate ground of an error that occurred after entry of his plea and that does not affect the pleas validity, however, the Court of Appeal may proceed to the merits of the appeal if the defendant has based his appeal solely on noncertificate grounds and has filed a notice of appeal so stating within [the appropriate time frame]. (Mendez, supra, 19 Cal.4th at p. 1096, italics added.) Appellant failed to comply with this requirement. In any event, his claim is overly broad to the degree that it appears frivolous. Appellant received the sentence that he bargained for and the record does not reveal any sentencing error.

We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) We note, however, that the abstract of judgment and the minute order of judgment contain clerical error. The abstract and minute order indicate that appellant received a one-year enhancement under section 12022.53, subdivision (d). As the reporters transcript states, the court imposed the one-year enhancement under section 12022, subdivision (a)(1).

The appeal is dismissed. The superior court is directed to correct the abstract of judgment to show that appellants one-year firearm use enhancement was imposed pursuant to section 12022, subdivision (a)(1) rather than section 12022.53, subdivision (d) and to forward a corrected copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^* DOI TODD, Acting P. J., ASHMANN-GERST, J., CHAVEZ, J.

^[1] All further references to statutes are to the Penal Code unless stated otherwise.

^[2] The prosecutor and the trial court incorrectly referred to the enhancement for principal use of a firearm as 12022.1. Section 12022.1 prescribes enhancements for offenses committed while the perpetrator is out on bail.

^[3]Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

^[4] Section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

^[5] All further references to rules are to the California Rules of Court unless stated otherwise.