P. v. Noriega

Filed 6/5/08 P. v. Noriega 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed.

Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

We appointed counsel to represent Fidencio Sanchez Noriega on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on his behalf. Noriega was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from Noriega. We have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

An amended felony complaint charged Noriega with the manufacture, distribution, and sale of a false document (Pen. Code,  113)[1] (count 1), the manufacture and sale of a false government document ( 529.5, subd. (a)) (count 2), and manufacture of a deceptive identification document ( 483.5, subds. (a), (d)) (count 3). The complaint alleged a Three Strikes law prior within the meaning of section 667, subdivisions (d), and (e)(1), and a prison prior within the meaning of section 667.5, subdivision (b).

Noriega pleaded guilty to count 3 and he admitted both prior conviction allegations. Pursuant to the plea agreement, the trial court sentenced Noriega to two years and eight months in state prison, the low term doubled pursuant to the prior strike. The court sentenced Noriega to one year in state prison for the prison prior and then struck that sentence. The court dismissed the remaining counts upon the prosecutors motion.

Noriega filed a timely notice of appeal in which he stated: I was told I would get more time if I didnt sign that day. Police officer was less than truthful. The trial court denied Noriegas request for a certificate of probable cause on December 28, 2007.

FACTS

Assisted by a Spanish language interpreter, Noriega executed a five-page waiver of rights and guilty plea form.[2] The form indicated his intention to enter a guilty plea to count 3 and admit the two prior conviction allegations. The form also indicated on its face that counts 1 and 2 would be dismissed in the interest of justice. In open court, the trial judge reviewed the form with Noriega who was again assisted by a Spanish language interpreter. The judge began by verifying with Noriega that the initials and signature on the form were entered by him. Noriega indicated the initials and signature were his. The judge asked if the interpreter had read everything to him before he signed and initialed the form. Noriega answered affirmatively. The judge asked Noriega if he had any questions about the form, and he indicated he did not. The judge engaged in the following colloquy with Noriega:

[Trial judge]: Is this your choice to enter this guilty plea?

[Noriega]: Yes.

[Trial judge]: You understand the maximum sentence you can receive for these charges is seven years in state prison?

[Noriega]: Okay. Yes.

[Trial judge]: You have the following constitutional rights in your case: You have the right to a speedy and public trial by court or by jury; [] You have the right to confront and cross-examine witnesses against you, either yourself or through an attorney; [] You have the right to testify on your own behalf, but you can not be compelled to be a witness against yourself and you may remain silent if you so choose; [] You have the right to call witnesses to testify on your behalf and to invoke the compulsory process of the court to subpoena those witnesses into court at no expense to you. You understand those rights?

[Noriega]: Yes.

[Trial judge]: Do you give up those rights?

[Noriega]: Yes.

[Trial judge]: Have you discussed the charges, the facts -- excuse me, I forgot. You also have a right to have a preliminary hearing. At that hearing you have a right to confront and -- excuse me, you have the right to confront and cross-examine witnesses against you -- actually you have all the other rights that I just described. You understand those rights?

[Noriega]: Yes.

[Trial judge]: Do you give up those rights?

[Noriega]: Yes.

[Trial judge]: Have you discussed the charges, the facts, and all possible defenses with your attorney?

[Noriega]: Yes.

[Trial judge]: Has anyone made any threats, used any force against yourself, family, or loved ones, or made any promises to you other than set forth in the guilty plea form in order to convince to you [sic] plead guilty?

[Noriega]: No.

[Trial judge]: At line 21 on page 2 states all the facts for your guilty plea.^[[3]] Are all those facts true?

[Noriega]: Yes.

Noriega then entered his guilty plea and admitted the two prior convictions. Counsel joined in the plea and the waivers. The court then stated the following: Court will accept the guilty plea. Find theres a factual basis for each guilty plea. Further find the defendants been fully advised of the consequences of his plea and his constitutional rights, and that the plea of guilty has been freely and voluntarily entered, and theres a knowing, intelligent waiver of those rights. Noriega waived arraignment for judgment and sentence was imposed.

Discussion

The trial judge thoroughly advised Noriega of his rights and expressly asked him if anyone had threatened him in an effort to convince him to plead guilty, and Noriega indicated no one had threatened him. At no time did Noriega indicate that anyone had told him he would get more time if he did not sign that day. We find no evidence in the record to support Noriegas claim that his plea was coerced. A guilty plea does not become involuntary because a reluctant defendant acknowledges the strength of the case against him and the possible penalty which may ensue. (In re Cowans (1970) 2 Cal.3d 733, 740.)

Noriega did not obtain a certificate of probable cause to enable him to challenge the validity of his plea agreement. ( 1237.5; People v. Mendez (1999)

19 Cal.4th 1084, 1095-1096.) The plea form clearly expressed the terms of the agreement. Because his sentence was an integral part of the plea agreement, Noriegas challenge to the sentence is a challenge to the guilty plea, and he was required to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79, 84.)

Noriega did not seek review of the denial of his request for a certificate of probable cause, and it is now too late for him to complain. The denial of a certificate of probable cause is not reviewable on appeal. (In re Brown (1973) 9 Cal.3d 679, 682-683 (Brown), disapproved on other grounds in People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098, fn. 7; People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) [T]he remedy is to seek review of the propriety of the denial. On a timely application therefore[e], the writ of mandate lies. [Citation.] (Brown, supra, 9 Cal.3d at p. 683.) Only when it has been adjudged that probable cause for appeal exists and the certificate has issued, either because the trial court has affirmatively responded to a defendants declaration of probable cause or because a proper court has reviewed a trial courts denial and mandated the issuance of the certificate, may appellate review of the trial court proceedings on the merits be had. (Ibid. & fn. 6.)

Had Noriega timely brought a writ of mandate on the denial of his request for a certificate of probable cause, we would have denied such writ. A certificate of probable cause should be granted where defendant shows reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. ( 1237.5,

subd. (a).) The trial court acted properly in denying Noriegas request. Finally, we note Noriega entered a knowing and intelligent waiver of any right he might have had to appeal.

Disposition

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] On our own motion, we take judicial notice of the Boykin-Tahl form in the superior court file. (Evid. Code, 452, subd.(d), 459, subd. (a); People v. Foster (1988) 201 Cal.App.3d 20, 24, fn. 1.) 

[3] The facts offered as the basis for the guilty plea form were as follows: In Orange County, California, on [August 12, 2007], I did willfully [and] unlawfully manufacture [and] and sell false government document. Also, [pursuant to] . . . [section] 1170.12[, subdivisions] (b) & (c)(1)[,] I was previously convicted of a serious [and] and violent felony on [November 7, 2000] for aggravated assault. Also, [pursuant to] . . . [section] 667.5[, subdivision] (b), I served prior prison term on [May 10, 2004][.]

The proposed disposition read in pertinent part: I understand the court will: [] (a) Sentence me to state prison for a period of [two] years and [eight] months, credit for time served of 66 days actual custody and 33 days of good time/work time for a total credit of 99 days. I waive and give up my right to make application for probation and request immediate sentence.

Also contained within the plea form was an appeal waiver that was initialed and stated: I understand I have a right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including motions to suppress evidence brought pursuant to . . . section 1538.5. I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.