P. v. Torres
Filed 12/28/12 P. v. Torres CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
VANESSA SUAREZ TORRES,
Defendant and Appellant.
G046738
(Super. Ct. No. 10NF1269)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Craig E. Robison, Judge. Affirmed.
Michelle
Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
* * *
We appointed
Suarez Torres on appeal. Counsel filed a
brief which set forth the facts of the case.
Counsel did not argue against the client, but advised the court no
issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written
argument in defendant’s own behalf. That
period has passed, and we have received no written argument from
defendant. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant
was charged with two counts of aggravated
assault, two counts of kidnapping, gang-related battery and street
terrorism. She pleaded guilty and
submitted the following statement as a factual basis for her guilty plea: “1. On 3-24-10, in Orange County, I
knowingly, willfully and unlawfully did the following: Assaulted Jane Doe with a deadly weapon, to
wit: A broken beer bottle and I caused
her great bodily injury. [¶] 2. On
3-25-10, in Orange County, I knowingly and actively participated in a criminal
street gang called Eastside Anaheim, which is an informal gang with more than
three members, that has, in the last three years, engaged in a pattern of
criminal activity and which commits, as some of its primary activities, crimes
such as assaults with deadly weapons and felony vandalisms. [¶] I willfully promoted, aided and abetted
and furthered the interest of that gang and its members by committing the
felonious conduct previously described in paragraph #1 above. I committed these offenses for the benefit
of, at the direction of, or in association with the Eastside Anaheim criminal
street gang with the specific intent to promote, further, or assist in any
criminal conduct by Eastside Anaheim gang members.â€
The
plea agreement states that she is sentenced to state prison for a term of six
years, that she already served 673 days in actual custody and that she
accumulated 100 days of good time/work time for a total credit of 773
days. In her plea agreement, she waived
her right to appeal from decisions and orders of the superior court.
Pursuant
to Anders v. California (1967) 386 U.S. 738,
counsel listed three possible issues:
(A) Is defendant’s guilty plea constitutionally valid? (B) Did the trial court err when it limited defendant’s credits under
Penal Code section 2933.1? (C) Was
defendant’s waiver of her appellate rights valid?
With
regard to the constitutionality of defendant’s plea, we have examined the
transcript of the trial court’s questions of defendant when her plea was
accepted. The court asked defendant
whether or not she had a chance to review the plea form with her lawyer, and
defendant said she did. We are satisfied
the court personally admonished defendant of the direct consequences of her
plea before accepting her waiver of her constitutional rights, and that she
freely and voluntarily waived them. (
the content of the plea form with her lawyer and was assured defendant was
satisfied she understood her rights and the consequences of her plea, the court
was not required to specifically question defendant about her giving up her
right to appeal. Under the circumstances
we find in this record, we must conclude defendant’s waiver of her appellate
rights is enforceable. (
83-84.)
As
to whether or not the trial court erred in limiting defendant’s custody
credits, we find no error. A defendant’s
plea admits all matters essential to the conviction. The issues cognizable on appeal are those
based on “reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings†resulting in the plea. But review of these issues requires a
certificate of probable cause, which defendant failed to obtain. (Pen. Code, § 1237.5, subd. (a); Cal. Rules
of Court, rule 8.304(b)(4)(B), (b)(5).)
“Section 1237.5 [is designed] ‘to promote judicial economy’ [citation]
‘by screening out wholly frivolous guilty . . . plea appeals
before time and money are spent’ on such matters as preparation of the record
on appeal [citation], the appointment of appellate counsel [citation], and, of
course, consideration and decision of the appeal itself.†(People
v. Mendez (1999) 19 Cal.4th 1084, 1095.)
Appealable
issues cognizable without a certificate of probable cause include the sentence
on other matters occurring “after entry of the plea,†and the denial of a
suppression motion. (Cal. Rules of
Court, rule 8.304(b)(4)(B).) But in the
case of a negotiated plea with specification of penalty, a certificate is
required because the defendant’s challenge to the sentence implicates the
plea. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) Moreover, here defendant expressly waived her
right to appeal in conjunction with her guilty plea as to any “legally
authorized sentence the court imposes which is within the terms and limits of
[the] plea agreement.†She reached an
agreement, and part of that agreement was the number of conduct credits she
would be given. Even had she agreed to
waive her right to any conduct credits at all, her right to appeal such a
waiver would not have survived her agreement.
(See People v. McEwan (2007)
147 Cal.App.4th 173, 175.) The trial court’s imposition of credits was legally
authorized.
The
judgment is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
