Fear Not Law Articles: P. v. Jimenez

P. v. Jimenez

Filed 6/13/08 P. v. Jimenez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

LORETO BOJORQUEZ JIMENEZ,

Defendant and Appellant.

H032214

(Santa Clara County

Super. Ct. No. EE605559)

Defendant Loreto Bojorquez Jimenez, driving under the influence of alcohol, was involved in an accident that caused great bodily injury to the driver of the other car involved. Defendant was charged with six counts related to the accident. He pleaded guilty to violating Vehicle Code section 23153, subdivision (b),[1] (driving with a blood alcohol level of 0.08 percent or greater) and section 2800.3 (eluding a pursuing peace officer and causing serious bodily injury to another person) and admitted that he personally caused great bodily injury to the victim, Kenneth Patrick Whitcomb (Pen. Code, 12022.7, 667 & 1192.7) and that he had one prior conviction of driving under the influence ( 23103.5). Defendant entered the plea in exchange for the dismissal of the remaining charges and a promise of four years and four months in prison. The trial court sentenced defendant to the agreed-upon term. This appeal followed, the notice of appeal citing only sentencing error as grounds for the appeal.

We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.

I. Background

Defendant was driving with a blood alcohol level of 0.08 percent or greater and struck another car driven by victim Whitcomb. Whitcomb had been driving a vehicle owned by his employer, Medical Courier, Inc. Whitcomb was seriously injured and Medical Courier, Inc. suffered the loss of its vehicle and the wages it paid Whitcomb while Whitcomb was unable to work.

At the sentencing hearing, the trial court imposed the prison sentence and fines and fees as follows: $500 general fund fine and penalty assessment, $50 for alcohol abuse education and prevention program, restitution fine of $1,600, a parole revocation fine of $1,600 (suspended under Pen. Code, 1202.45), court security fee of $40, criminal justice administration fee of $129.75, restitution to Whitcomb in the amount of $127,988.44, and $13,856.26 as restitution to Medical Courier, Inc. Defendant waived his right to a hearing on the amount of restitution he owed to victim Whitcomb.

II. Discussion

Defendant did not receive a certificate of probable cause, which is required by Penal Code section 1237.5 for an appeal from judgment entered following a guilty or no contest plea. Accordingly, the appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (Id., 1237.5, subd. (a).) The certificate is not required, however, when the notice of appeal states that it is based upon the denial of a motion to suppress evidence under Penal Code section 1538.5 or upon grounds that arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4).)Defendants notice of appeal states that the appeal is based upon error that arose after entry of the plea, namely sentencing error. The appeal is, therefore, operative to that extent.

We have reviewed the whole record pursuant to People v. Wende (1979) 25 Cal.3d 436. We find no arguable issue on appeal.

III. Disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further unspecified code references are to the Vehicle Code.

Description	Defendant Loreto Bojorquez Jimenez, driving under the influence of alcohol, was involved in an accident that caused great bodily injury to the driver of the other car involved. Defendant was charged with six counts related to the accident. He pleaded guilty to violating Vehicle Code section 23153, subdivision (b),[1] (driving with a blood alcohol level of 0.08 percent or greater) and section 2800.3 (eluding a pursuing peace officer and causing serious bodily injury to another person) and admitted that he personally caused great bodily injury to the victim, Kenneth Patrick Whitcomb (Pen. Code, 12022.7, 667 & 1192.7) and that he had one prior conviction of driving under the influence ( 23103.5). Defendant entered the plea in exchange for the dismissal of the remaining charges and a promise of four years and four months in prison. The trial court sentenced defendant to the agreed-upon term. This appeal followed, the notice of appeal citing only sentencing error as grounds for the appeal. We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and Court have received no written argument from defendant.
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