P. v. Lemons
Filed 1/26/09 P. v. Lemons CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, Plaintiff and Respondent, v. GLEN DALE LEMONS, JR., Defendant and Appellant. | C058471 (Super. Ct. No. CRF07658) |
Defendant Glen Dale Lemons, Jr., was a passenger in the front seat of a vehicle driven by his friend, Trent G., whose 10-year-old daughter, T.G., was sitting in the back seat by her six-year-old sister. Defendant held his cell phone over his shoulder and showed to T.G. pictures of defendants penis and a text message stating he wanted to masturbate. When T.G. later walked by defendant in the living room of her fathers home, defendant was looking at a picture of a mans penis on a laptop computer.
T.G. told her father what happened, and he contacted police, who found defendant sleeping in a tent by the river. They conducted a parole search of the tent and found two cellular phones, a laptop computer, a webcam, and pornographic magazines. The phones and the computer contained pornographic photographs, including pictures of defendants penis and pictures of minor children engaged in sexual acts.
Represented by counsel, defendant pled no contest to possessing an image of a person under the age of 18 engaging in or simulating sexual conduct (Pen. Code, 311.11, subd. (b)), admitted having a prior conviction for indecent exposure (Pen. Code, 314, subd. 1), and stipulated he would receive a term of four years in state prison. Other charges against him were dismissed as a part of the plea agreement. (Further section references are to the Penal Code.)
In accordance with the negotiated plea, the court denied probation, sentenced defendant to the middle term of four years in state prison, awarded presentence custody credit, imposed fees and fines, and ordered defendant to register as a sex offender ( 290).
Defendant filed a timely notice of appeal, and we appointed counsel to represent him. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, asking us to permit him to withdraw his plea based on ineffective assistance of counsel and being forced or coerced into excepting [sic] [the] plea.
Section 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.] (People v. Shelton (2006) 37 Cal.4th 759, 766; 1237.5, subd. (b); see also People v. Buttram (2003) 30 Cal.4th 773, 790 [the purpose of 1237.5 is to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted].) Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. (People v. Cuevas (2008) 44 Cal.4th 374, 379; see also Cal. Rules of Court, rule 8.304(b)(4)(B).)
Here, defendant directly challenges the validity of the plea. Absent a certificate of probable cause, which he failed to secure, his claim is barred.
Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.
The appeal is dismissed.
SCOTLAND , P. J.
We concur:
HULL, J.
BUTZ , J.
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