Filed 4/18/17 P. v. Swortzel CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE



THE PEOPLE,
Plaintiff and Respondent,
v.
BRET LAWRENCE SWORTZEL,
Defendant and Appellant.

A149478

(Humboldt County
Super. Ct. No. CR1500991)


Defendant Bret Lawrence Swortzel appeals from a judgment entered pursuant to a plea of guilty to one count of first degree residential burglary with a person present (Pen. Code, § 459), admissions of two prior prison term enhancements (id., § 667.5, subd. (b)) and a prior strike (id., § 667, subds. (b)–(i)), and waiver of presentence custody credits. Consistent with the terms of the negotiated disposition, the trial court sentenced him to a total term of 10 years in state prison and imposed fines and fees. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
Penal Code section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under Penal Code section 1538.5, subdivision (m); and (2) post-plea sentencing issues. (See People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant did not make a suppression motion. And since the trial court did not grant defendant’s request for a certificate of probable cause, he is not able to challenge the validity of his plea or any other matter that preceded its entry, except as permitted under the exceptions. (People v. Cole (2001) 88 Cal.App.4th 850, 868.) We therefore limit our review to post-plea sentencing.
Defendant agreed to resolve the case on the day set for jury trial (following many continuances of the trial date). The trial court recited the terms of the negotiated disposition and duly examined defendant to establish that he understood those terms, understood the rights he was giving up, and freely entered into the agreed-to resolution. The court found the transcript of the preliminary hearing provided a factual basis for the plea. Following the court’s acceptance of defendant’s guilty plea and admission of the enhancements recited above, the court continued the matter for sentencing.
On the date set for sentencing, the court allowed the two victims of the invasion, night robbery to address the court. One read a letter she had written and previously sent to the probation department. It was a graphic description of the terror of that evening. She had stood naked in front of the perpetrators, her then-partner eventually beat them off with a baseball bat, and a third perpetrator ran in and sprayed the victim and her then-partner with pepper spray and fired a .45-caliber firearm through her bedroom window while she was retrieving her phone. The victim described it as a “terrifying incident,” the effects of which were “severe and lasting.” She thought she “would die that night” and that she would see her then-partner being murdered. She was in counseling, and her relationship with her then-partner was destroyed. She felt the negotiated disposition provided inadequate punishment, and asked the court to reject it or impose the maximum term permissible under it. The other victim, the former-partner, gave a similar description of the events, feared for his life, and was suffering ongoing trauma. Sentencing was then continued to give defendant full time to review the probation report.
At the continued hearing, the court announced its tentative decision to impose the maximum prison sentence allowed by the negotiated disposition, 10 years. It then heard from defendant and defense counsel, who noted the supposed “principal” defendant who had “orchestrated” the crime, had, pursuant to a plea deal, received only a six-year sentence. Counsel asked that “unusual circumstances” be found and that some portion of defendant’s sentence be suspended. The prosecutor supported the tentative decision, noting defendant’s prior record and the gravity of his current crime.
Finding aggravating factors, and no factors in mitigation, the court imposed its contemplated 10-year prison term. The court imposed fees and a restitution fine, but did not impose a fee for the presentence report.
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the judgment.

 




_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Margulies, J.























A149478, People v. Swortzel