Filed 4/24/17 P. v. Valencia CA4/3








NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ANTHONY VALENCIA,

Defendant and Appellant.


G054402

(Super. Ct. No. 16CF2672)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Andre Manssourian, Judge. Appeal dismissed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

* * *
Michael Anthony Valencia pleaded guilty to committing misdemeanor criminal threats (Pen. Code, § 422, subd. (a); all statutory references are to the Penal Code), felony vandalism (§ 594, subds. (a), (b)(1)), misdemeanor assault (§ 240) and misdemeanor battery (§ 242), and admitted suffering two prior convictions within the meaning of section 667.5, subdivision (b). The trial court imposed a five-year prison term. Defendant appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant did not file a supplemental brief. Our review of the record discloses Valencia did not obtain a certificate of probable cause, he has raised no cognizable issues, and he waived his right to appeal as a condition of his plea. We will dismiss the appeal.
I
FACTS AND PROCEDURAL HISTORY
On October 17, 2016, the Orange County District Attorney filed a complaint alleging Valencia committed felony criminal threats and other offenses with the enhancements described above. The complaint also alleged Valencia had suffered a prior serious or violent felony within the meaning of the Three Strike law (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and a prior serious felony within the meaning of section 667, subdivision (a).
On October 28, 2016, the date set for the preliminary hearing, Valencia pleaded guilty to the court on the understanding the court would impose a five-year prison term. The court reduced the criminal threats charge to a misdemeanor (§ 17, subd. (b)(5)), resulting in dismissal of the section 667, subdivision (a), allegation by operation of law. Valencia executed an advisement, waiver of rights and guilty plea form (Tahl), pleading guilty to the charged offenses, as reduced, and admitting the enhancements. The Tahl form provided Valencia waived the right to appeal from “any and all decisions and orders made in his case,” including his “right to appeal from [his] guilty plea” and “from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.”
In open court, Valencia agreed the court had advised if he pleaded guilty the court would impose a five-year prison sentence. Valencia stated he had reviewed the Tahl form with his lawyer, he understood “it all,” and he initialed and signed the form. The court advised him of the rights he was waiving, and Valencia said he understood. Valencia stated no one had threatened him and he was pleading guilty freely and voluntarily and because he committed the offenses. Valencia pleaded guilty to the offenses and admitted the prior conviction allegations, providing the following factual basis for his plea: “In Orange County, California, on 10-13-16, I unlawfully and willfully threatened to kill Diane G. with the specific intent that my statement be taken as a threat as it was so unequivocal, unconditional, immediate, and specific so that it conveyed to the person threatened a gravity of purpose and an immediate prospect of execution of the threat which reasonably caused Diane G. to reasonably be in substantial fear for her safety and maliciously and unlawfully destroyed windows, personal property belonging to Diane G. and Michael V. Sr. in an amount greater that four hundred dollars and willfully and unlawfully used force and violence against the person of Leonard G.”
The court struck (§ 1385) the Three Strikes law prior, and imposed a five-year term, comprised of the upper three-year term for felony vandalism, and two one-year enhancements under section 667.5, subdivision (b). The court suspended sentence on the misdemeanors. The court awarded Valencia custody credits totaling 30 days. The court stated he would have to pay fines and fees through the Department of Corrections, and supply a DNA sample. The court reserved jurisdiction to determine victim restitution. During sentencing, Valencia asked whether he would be on state parole or “county supervision,” stating he felt more comfortable on parole. The court advised he would be on postrelease community supervision after his release.
On December 19, 2016, Valencia filed a notice of appeal. He stated the appeal was based on the sentence or other matters occurring after the plea that did not affect its validity. He also challenged the validity of the plea and admissions, and stated another basis for the appeal was that he “was assaulted by the complaining witness.” He also requested a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) His request provided: “Although not necessary the defendant submits the request for Cert[ificate] of Prob[able] Cause in support of the non certifiable grounds: [1.] sentence error [2.] sentence exceeds that agreed; I did not understand the felony advisement of rights waiver & plea form. The court is advised that the non-certifiable grounds are raised pursuant to Cal. Rules of Court 8.304(b)(4); certifiable grounds 1) ineffective waiver of constitutional rights including the rights regarding elements of the offense; ineffective assistance of counsel – on the face of the record – and for failing to discuss the elements of the offense and my affirmative defenses; ineffective assistance of counsel for having me plead guilty to facts that were untrue; I never threatened anyone as was a victim of assault w/ deadly weapon; I did not commit vandalism. Attorney Paul Rogers only gave me approximately 5 minutes to accept or reject the plea then left court without answering my questions and then had an associate attorney stand in. I never was allowed an opportunity to discuss my case and defenses and the fact I was not guilty and was being pressured to pled guilty or face prospect of going to trial and getting 7 years @ 85% with counsel who was unprepared and not listening to me.”
The trial court denied the request for certificate of probable cause on March 1, 2017.
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel’s brief and the appellate record. Appellate counsel notes she considered several issues in conducting her review, including whether Valencia’s appeal waiver was valid, whether the court abused its discretion when it denied Valencia’s request for a certificate of probable cause, whether Valencia’s plea was constitutionally valid, whether the court sufficiently stated reasons for selecting the upper term sentence on count two, whether the factual basis was adequate, and whether trial counsel performed ineffectively. Our review of the entire record, including the matters identified by counsel, does not show the existence of an arguable issue. Valencia has not availed himself of the opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues raised personally by appellant in a Wende proceeding]), nor has he requested to have appellate counsel relieved. Because Valencia did not obtain a certificate of probable cause and does not raise any cognizable issues, and because he expressly waived the right to appeal as part of his plea agreement, the appeal must be dismissed. (See People v. Panizzon (1996) 13 Cal.4th 68, 74-76 [only issues that may be raised in a guilty or nolo contendere plea appeal without issuance of a probable cause certificate are search and seizure issues and issues regarding proceedings held subsequent to the plea to for the purpose of determining the degree of the crime and the penalty to be imposed; a defendant’s challenge to the imposition of a negotiated sentence goes to the heart of a plea agreement and therefore constitutes a challenge to the validity of the plea; a defendant may affirmatively waive the right to appeal as part of the plea agreement provided it is knowing, intelligent, and voluntary]; People v. Castelan (1995) 32 Cal.App.4th 1185, 1188-1189 [appellate court should dismiss appeal that does not comply with section 1237.5]; Wende, supra, 25 Cal.3d at pp. 442-443.)
III
DISPOSITION
The appeal is dismissed.



ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.