P. v. Tran
Filed 9/28/10 P. v. Tran CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HOANG MINH TRAN,
Defendant and Appellant.
D055726
(Super. Ct.
No. SCD219449)
APPEAL from
a judgment of the Superior Court
of San Diego
County, David M. Gill, Judge.
Affirmed.
Hoang Minh
Tran entered a negotiated guilty plea to one count of battery by gassing on a peace officer or an
employee of a local detention facility.
(Pen. Code, § 243.9, subd. (a)).[1] In exchange for the guilty plea, the
prosecution agreed to dismiss three other counts of battery by gassing and one
count of resisting a peace officer by threat or violence (§ 69). The plea bargain called for a one-year prison
term to run consecutive to the sentences imposed in three unrelated pending
criminal cases.
The trial
court imposed a one-year consecutive sentence in accordance with the plea
bargain.
Tran did
not obtain a certificate of probable cause.
FACTS
On February 3, 2009, Deputy Sheriff Omar
Ortega was assigned as a house guard for Tran, who was at UCSD
Medical Center
for hernia surgery. Tran had been on
trial for aiding and abetting a jail escape when the surgery took place.[2] Tran was chained to a hospital bed, and
Ortega was sitting in a chair about three to four feet from Tran.
Tran
said: "Beaner, go back to Mexico." Tran spat in Ortega's face and challenged the
deputy to a fight. Tran's spit hit
Ortega in the eye. Tran also said: "Come on, do something you fucking
faggot, come over here." "I
don't care if you're a witness," Tran told Ortega, who was a prosecution
witness in the jail escape trial.
DISCUSSION
Appointed appellate counsel has filed a brief setting
forth the evidence in the superior court.
Counsel presents no argument for reversal but asks that this court
review the record for error as mandated by People
v. Wende (1979) 25 Cal.3d 436.
Pursuant to Anders v. California
(1967) 386 U.S. 738, counsel refers to as possible, but not arguable,
issues: (1) whether Tran's guilty plea
was constitutionally valid; (2) whether Tran's presentence credits should be
recalculated under the amendment to section 4019, which became effective on
January 25, 2010;[3]
and (3) whether the trial court abused its discretion by imposing a consecutive
sentence.
We granted
Tran permission to file a brief on his own behalf. He has responded.
Tran claims
that he was innocent of battery by gassing.
However, Tran's guilty plea constituted an admission of every element of
the offense and precludes any challenge to the sufficiency of the evidence on
appeal. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; see also
750.)
Tran also
complains he was coerced into pleading guilty even though he was innocent of
the crimes. Because Tran did not obtain
a certificate of probable cause, he cannot challenge his guilty plea. Section 1237.5 precludes consideration of any
challenge to a guilty plea on appeal absent a certificate of probable cause. (See People
v. Buttram (2003) 30 Cal.4th 773, 781-782; People v. Panizzon (1996) 13 Cal.4th 68, 76.)
A review of
the entire record pursuant to People v.
Wende, supra, 25 Cal.3d 436,
including the possible issues referred to pursuant to Anders v. California, supra,
386 U.S. 738, has disclosed no other reasonably arguable appellate issue. Competent counsel has represented Tran on
this appeal.
DISPOSITION
The
judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL,
P. J.
O'ROURKE,
J.
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[1] Statutory references are to the Penal
Code.
"
'[G]assing' means intentionally placing or throwing, or causing to be placed or
thrown, upon the person of another, any human excrement or other bodily fluids
or bodily substance or any mixture containing human excrement or other bodily
fluids or bodily substances that results in actual contact with the person's
skin or membranes." (§ 243.9,
subd. (b).)
[2]
This was superior court case No.
SCS223842, which is the subject of appeal No. D055728 in this court.
