P. v. Hernandez

Filed 5/16/06  P. v. Hernandez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Tulare County.  Patrick O'Hara, Judge.

            Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

            Appellant, Esteban Hernandez, pled no contest to second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c); count 1), receiving stolen property (§ 496, subd. (a); count 4), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 5), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 6) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 7).  He also admitted an enhancement allegation that, in committing the robbery, he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and a probation-disqualifying allegation that he had suffered two prior felony convictions (Pen. Code, § 1203, subd. (e)).  The court imposed a prison term of 12 years, consisting of the two-year lower term on count 1 plus 10 years on the firearm use enhancement.  The court imposed concurrent two-year terms on each of counts 4 and 5, and no incarceration time on either of counts 6 and 7. 

            Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record.  (People v. Wende (1979) 25 Cal.3d. 436.)              Appellant, in response to this court's invitation to submit additional briefing, has submitted a letter in which he argues, as best we can determine, that he was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution.  However, to the extent this contention is based on the conduct of appellant's counsel prior to the entry of appellant's plea, it is, in essence, a challenge to the validity of the plea and therefore, because the court did not issue a certificate of probable cause, not cognizable on this appeal.  (People v. Panizzon (1996) 13 Cal.4th 68, 76 [challenge to validity of plea foreclosed by absence of a certificate of probable cause]; People v. Stubbs (1998) 61 Cal.App.4th 243 [claim of ineffective assistance occurring prior to plea went to validity of plea and therefore not cognizable on appeal in absence of compliance with certificate of probable cause requirements].)  And to the extent that appellant's claim is based on counsel's conduct after the entry of plea, such claim is without merit.  We have independently reviewed the record and, based on that review, we conclude that no reasonably arguable legal or factual issues exist, including issues of ineffective assistance of counsel.

            The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Dawson, J., and Hill, J.