P. v. Orantes



















Filed 1/22/13 P. v. Orantes
CA4/2













NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO






>

THE PEOPLE, Plaintiff and Respondent, v. RALPH ORANTES, JR., Defendant and Appellant.

E056707 (Super.Ct.No. RIF1105628) OPINION

APPEAL
from the Superior Court of Riverside
County. Helios (Joe)
Hernandez, Judge. Affirmed.

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

No
appearance for Plaintiff and Respondent.

INTRODUCTION

On
November 4, 2011, a felony complaint charged defendant and appellant Ralph
Orantes, Jr., with violations of Penal Codehref="#_ftn1" name="_ftnref1" title="">^[1] section 269, subdivision (a)(1) for rape of a
child under the age of 14 years and seven or more years younger than the
defendant (counts 1 & 2); and section 288, subdivision (b)(1) for lewd and
lascivious acts upon a minor under the age of 14 years (counts 3‑12). Defendant pled not guilty.

On
May 8, 2012, defendant withdrew his not
guilty plea and entered into a negotiated
settlement whereby he pled guilty to counts 3 through 7. As a condition of the plea, the parties
agreed that the remaining counts would be dismissed and that defendant would
receive a determinate term of 40 years in state prison (upper term on all
counts, full and consecutive). Defendant
waived his right to appeal.

On
July 11, 2012, the parties appeared for
sentencing. Defendant indicated that he
wished to withdraw his guilty plea, so the case was sent to another courtroom
for a hearing under People v. Marsden
(1970) 2 Cal.3d 118. Following the
hearing, the court denied the Marsden
motion.

Thereafter,
defendant returned to the sentencing court.
The trial court sentenced defendant pursuant to the agreed-upon term of
40 years. Defendant was awarded 253 days
of actual credit, plus 37 days of credit under section 2933.1, for a total of
290 days. The court then imposed a
restitution fine and various fees.

On
July 11, 2012, a timely href="http://www.fearnotlaw.com/">notice of appeal was filed. Defendant did not request a certificate of
probable cause.

STATEMENT OF FACTS

For
the factual basis of his plea, defendant agreed that he “did the things that
are stated in the charges that [he was] admitting.”

Defendant
pled guilty to five violations of section 288, subdivision (b)(1) in that he
did willfully, unlawfully and lewdly commit a lewd and lascivious act upon and
with the body and certain parts and members of Jane Doe, a child under 14 years
of age, by use of force, violence, duress, menace and fear of immediate and
unlawful bodily injury, with the intent of arousing, appealing to, and
gratifying defendant’s lust, passions and sexual desires.

ANALYSIS

After defendant
appealed, and upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of href="http://www.mcmillanlaw.com/">People v. Wende (1979) 25 Cal.3d 436
and Anders v. California (1967) 386
U.S. 738 setting forth a statement of the case, a summary of the facts, and
potential arguable issues, and requesting this court to undertake a review of
the entire record.

We offered
defendant an opportunity to file a personal
supplemental brief, and he has done so. In his 10-page handwritten brief, defendant
appears to argue that: (1) there is
insufficient evidence to support his conviction because the victim was
allegedly 15 years old at the time the acts took place and the acts were
consensual; (2) defense counsel rendered ineffective assistance of counsel; and
(3) he was pressured to sign the plea agreement. Pursuant to the mandate of >People v. Kelly (2006) 40 Cal.4th 106,
we have independently reviewed the record for potential error.

“When a defendant
pleads not guilty and is convicted as the result of a trial, in general any
issue bearing on the determination of guilt and apparent from the record is
cognizable on appeal. (See
§ 1237.) By contrast, when a
defendant pleads guilty or no contest and is convicted without a trial, only
limited issues are cognizable on appeal.
A guilty plea admits every element of the charged offense and
constitutes a conviction [citations], and consequently issues that concern the
determination of guilt or innocence are not cognizable. [Citations.]
Instead, appellate review is limited to issues that concern the
‘jurisdiction of the court or the legality of the proceedings, including the
constitutional validity of the plea.’
[Citations.]” (>In re Chavez (2003) 30 Cal.4th 643,
649.) In addition, “section 1237.5
authorizes an appeal [following a guilty plea] only as to a particular category
of issues,” and to have these issues considered on appeal, a defendant must
first take the additional procedural step of obtaining a certificate of probable
cause.href="#_ftn2" name="_ftnref2"
title="">^[2] (Id. at p. 650.)

In the absence of a
certificate of probable cause, we may
not consider the validity of the plea, whether the change of plea was
knowingly, intelligently, or voluntarily made, or whether defendant was
deprived of effective assistance of counsel.
(§ 1237.5; see also People v.
Stubbs (1998) 61 Cal.App.4th 243, 244-245.)


Here, because defendant failed to obtain a
certificate of probable cause, his contentions are not cognizable on appeal,
and we cannot address them. (>People v. Shelton (2006) 37
Cal.4th 759, 766; People >v. Panizzon
(1996) 13 Cal.4th 68, 76.)

Pursuant to >People v. Kelly, we have now concluded our independent review of the entire
record and find no arguable issues on
appeal.

DISPOSITION

The
judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



MCKINSTER

J.





We concur:



HOLLENHORST

Acting P. J.

KING

J.