P. v. Rivera

Filed 6/30/08 P. v. Rivera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant David Martinez Rivera pleaded guilty in July 2007 to one count of unauthorized use of tear gas (Pen. Code,  12403.7, subd. (g)),[1] and two counts of assault with a deadly weapon ( 245, subd. (a)(1)). Defendant was sentenced to two years in state prison on each count, with each sentence to be served concurrently. Defendant filed a timely appeal. We will affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY[2]

On July 9, 2006, at around 10:30 p.m., San Jose Police Department officers responded to a reported crime at a shopping center, namely, a hit and run (with injury) and an unlawful use of pepper spray. Sean Richardson reported that he was waiting in his car for Mary Coa (defendants former girlfriend) to get off of work. As Coa walked toward Richardsons car, she noticed defendant inside his parked car. She tried to avoid him because of prior negative experiences. When Coa got to the Richardson car, defendant struck her with his car on her lower right leg.

According to reports from both victims, after Coa got in Richardsons car, defendant walked up to the drivers side and discharged pepper spray at Richardson. Richardson then drove his car away and parked at a nearby parking lot. At that point, the pepper spray began having an effect on him. Defendant followed them in his car and rear-ended Richardson, resulting in minor damage. He then fled the scene.

Coa was transported to Kaiser for observation but left without being treated because she did not want to pay a $300 deductible. Richardson suffered pain and redness to his face from the pepper spray but declined medical treatment.

Defendant was charged by information filed February 23, 2007, with one count of unauthorized use of tear gas ( 12403.7, subd. (g)), and two counts of assault with a deadly weapon, an automobile ( 245, subd. (a)(1)). The information contained the further allegations that as to the two assault charges, defendant personally used a dangerous weapon in the commission of the offenses within the meaning of sections 667 and 1192.7. Defendant filed a motion to dismiss pursuant to section 995 as to the count of unauthorized use of tear gas. That motion was denied. The record reflects that defendant wrote a letter to the court dated May 3, 2007 (ordered sealed), and that a Marsden[3]motion was thereafter heard and denied.

After trial commenced on July 17, 2007, defendant pleaded guilty to the three counts and admitted the allegations charged in the information, with the understanding that he would received a two-year prison sentence. Before accepting the plea, the court apprised defendant fully of the rights he was giving up as a result of his guilty plea and concerning the consequences of that plea. Counsel stipulated that there was a factual basis for the plea. On September 28, 2007, defendant, against the advice of counsel, moved to withdraw his guilty plea. The motion, together with a second Marsden motion, was heard and denied on October 26, 2007. On November 26, 2007, the court sentenced defendant to two years in prison as to each count, with the sentences to run concurrently. Defendant filed a timely notice of appeal in which he challenged the validity of the guilty plea and the denial of the Marsden motion. The notice also sought a certificate of probable cause, which request was denied by the court.[4]

DISCUSSION

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

We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. Based upon that review, we have concluded that there is no arguable issue on appeal.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting P.J.

McAdams, J.

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

[2] The factual background is derived from the report of the probation officer.

[3]People v. Marsden (1970) 2 Cal.3d 118.

[4] Since the court below denied the request for a certificate of probable cause, any challenge to the validity of defendants guilty plea is not cognizable on appeal. ( 1237.5; see also People v. Ribero (1971) 4 Cal.3d 55, 63-64 [defendant cannot circumvent requirements of section 1237.5 by labeling appeal as one challenging denial of motion to withdraw guilty plea].) Since the Marsden motion made at the time of defendants motion to withdraw guilty plea likewise consisted of an attack on his guilty plea, any challenge to the denial of the Marsden motion was likewise not cognizable on appeal. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)