P. v. Careaga
Filed 10/3/11 P. v. Careaga CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE CAREAGA, Defendant and Appellant. | F061566 (Super. Ct. No. SUF30306) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen and Donald E. Shaver, Judges.†
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Pursuant to a plea agreement, appellant, Enrique Careaga, on September 28, 2010, pled no contest to single counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b);[1] count 2) and infliction of cruel or inhuman corporal punishment resulting in a traumatic condition on a child (§ 273d, subd. (a); count 5) and two counts of child endangerment (§ 273a, subd. (a); counts 3, 4), and admitted allegations that he personally used a firearm (§ 12022.5, subd. (a)) in committing the assault and the two section 273d, subdivision (a) violations. One of the terms of the plea agreement was that appellant would receive a prison sentence of 16 years 8 months.
On November 2, 2010, the court, following a hearing, denied appellant’s motion for the appointment of substitute counsel. Later that same day, the court imposed the agreed-upon sentence of 16 years 8 months, consisting of six years on count 2, four years on the count 2 firearm use enhancement, one year four months on each of counts 3 and 4, one year four months on each of the firearm use enhancements accompanying counts 3 and 4, and one year four months on count 5.
On December 21, 2010, appellant filed a timely notice of appeal in which he indicated the appeal was based on the sentence or other matters occurring after the plea. There is no indication in the record that appellant requested, or that the court issued, a certificate of probable cause (§ 1237.5).
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 has filed three supplemental briefs in which he argues, as best we can determine, that his plea was involuntary due to duress, he is not guilty of the instant offenses and he was denied his right to a fair trial. We will affirm.
FACTS
On the morning of August 12, 2005, appellant, his wife Nidia Careaga (Nidia),[2] her two children, ages 11 and 7, and appellant’s 18-year old nephew left San Diego, traveling by car.[3] Appellant began drinking beer early in the trip, he stopped several times to buy more beer and by the time the group reached Merced some hours later he had consumed twelve 24-ounce beers.
At some point north of Los Angeles, appellant began hitting Nidia. He hit her so many times she lost count. At one point he pulled out a gun, stopped the car, pointed the gun at Nidia and threatened to kill her. He stopped again later and pointed the gun at the children. They got out of the car and Nidia’s son ran off along the side of the freeway. Appellant caught him and struck him, breaking the boy’s clavicle.
Subsequently, appellant and the others got back in the car and appellant drove off. He reached speeds of approximately 100 miles per hour. As he drove he continued to hit Nidia. At some point before they reached Merced he broke her nose.
Appellant stopped again near Merced and pointed the gun at Nidia, touching her head with it. He started “playing with the trigger,” saying he was going to kill her. He pulled the trigger, and as he did so, Nidia grabbed his arm and pushed it upward. The gun went off and the bullet grazed Nidia’s head. She suffered injuries to her skull, gunpowder burns to her left hand and numerous bruises, in addition to her broken nose.
DISCUSSION
Appellant argues as follows: he “was physically, mentally, and emotionally exhausted until, under such extreme duress, [he] was pressured and coerced into accepting a plea deal,” and therefore his plea was involuntary; the various deputy public defenders who represented him were constitutionally ineffective in that they failed to make various motions; withheld evidence from appellant; lied to him; prevented him from challenging the sufficiency of the evidence against him; coerced him into pleading no contest; coerced appellant’s wife into testifying falsely against appellant, and did nothing “to expose, report, or investigate” numerous instances of “misconduct” by the judges and prosecutors; the prosecution coerced appellant into pleading no contest and coerced appellant’s wife into lying, in violation of appellant’s right to a fair trial; and the various judges, prosecutors and deputy public defenders colluded with each other to “cover-up, rather than report and investigate” numerous instances of their own misconduct, thereby denying appellant his right to a fair trial.
Appellant, however, as indicated above, did not obtain a certificate of probable cause. “[S]ection 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.] ‘Despite this broad language, [our Supreme Court has] held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under ... section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.) The contentions set forth above do not raise either of the two kinds of issues that may be raised in the absence of a certificate of probable cause. Therefore, those contentions are not cognizable on this appeal.
Appellant also argues that he is not guilty of the instant offenses by reason of insanity. Consideration of this contention is precluded by appellant’s plea of no contest. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178 [plea of guilty precludes appellate determination of issues going to guilt or innocence]; § 1016 [no contest plea has same legal effect as a guilty plea].)
Independent Review of the Record
Based on our review of the record, we conclude no other reasonably arguable issues exist.
DISPOSITION
The judgment is affirmed.
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*Before Levy, Acting P.J., Kane, J., and Poochigian, J.
† Judge Hanson presided over appellant’s plea hearing and Judge Shaver presided over appellant’s sentencing hearing. Judge Shaver is a Retired Judge of the Stanislaus Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Except as otherwise indicated, all statutory references are to the Penal Code.
[2] For the sake of clarity and brevity, and intending no disrespect, we will refer to Ms. Careaga by her first name.
[3] Our factual statement is taken from Nidia’s preliminary hearing testimony.
