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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CHARLES WYKLE, Defendant and Appellant.


Decided: February 18, 2010

Appellant has failed to obtain a certificate of probable cause as required pursuant to section 1237.5.  “[A] challenge attacking an integral part of the plea is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and [California Rules of Court, rule 8.304(b).]' ”  (Sturns, supra, 77 Cal.App.4th at p. 1390.)   In Sturns, the court noted that in exchange for defendant's plea of nolo contendere and his admission of a prior strike conviction within the meaning of section 1170.12, subdivision (c)(1), the People agreed to dismiss the other special allegations set forth in the information.  (Sturns, supra, at p. 1390.)   The court held that the defendant's challenge to a trial court's denial of a motion to dismiss a prior section 451 conviction on the basis of whether the prior conviction constituted a strike within the meaning of section 1170.12, was an attack on an element of his plea agreement.  (Sturns, at p. 1390.)   Thus, the defendant's failure to obtain a certificate of probable cause precluded review.  (Ibid.)


Appellant Charles Wykle appeals from the judgment entered following his negotiated plea of “no contest” to one count of robbery in violation of Penal Code section 211.1  Appellant admitted that he had previously suffered a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and that he had suffered four prior serious felony convictions within the meaning of section 667, subdivisions (a)(1) and (b).  In exchange, appellant was sentenced to a stipulated term of 30 years in state prison consisting of:  10 years on the robbery count (the upper term of five years, doubled), plus five years each for four prior convictions within the meaning of section 667, subdivision (a)(1).

We appointed counsel to represent him on this appeal.

The facts giving rise to the robbery conviction are as follows:  On September 21, 2007, at 1:40 a.m., appellant walked into a Santa Monica liquor store managed by Richard Barraza (Barraza).   Appellant told Barraza to give him money, then unsuccessfully attempted to grab Barraza over the counter.   Appellant then walked around the counter to the cash register.   Barraza grabbed the revolver that was kept under the register and told appellant to “Freeze, or I'll shoot.”   Appellant continued pressing buttons on the cash register, looked at Barraza, and said “I don't care.   Shoot me.”   After again telling appellant to freeze, Barraza fired the weapon, aiming behind appellant toward the floor.   Appellant continued to press buttons and did not move.   Barraza ran outside and tried to lock appellant inside the store.   Appellant pushed the doors open, hitting Barraza.   Holding a handful of cash, appellant pushed Barraza aside.   Barraza grabbed appellant, who then hit Barraza in the face.   Barraza's coworker then helped wrestle appellant to the ground.   The police arrived shortly thereafter and arrested appellant.

On June 22, 2009, appellant filed a notice of appeal.   His request for a certificate of probable cause was denied by the trial court.   After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.   On November 20, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.   On December 8, 2009, appellant filed a supplemental brief.

Pursuant to section 1237.5 and

In his supplemental brief, appellant claims that his counsel had promised but failed to get help for him at a state hospital.   He also claims that he has a long history of mental illness and that prior to robbing the liquor store he heard voices that ordered him to get money.   Appellant complains that a letter from a court-appointed psychiatrist improperly states that appellant never told him about hearing voices.   To the extent that appellant claims he was coerced into entering into the plea agreement and admitting prior convictions, or that he lacked mental capacity and was not given effective assistance of counsel, his challenge is not cognizable on appeal because he failed to obtain a certificate of probable cause.  (People v. McEwan (2007) 147 Cal.App.4th 173, 178 [under statute requiring certificate of probable cause for appeal following guilty or nolo contendre plea that raises issues going to validity of plea, certificate must be obtained when defendant claims that plea was induced by misrepresentations of fundamental nature, that plea was entered at time when defendant was mentally incompetent, or that warnings regarding effect of guilty plea on right to appeal were inadequate].)

Even were we to treat appellant's claim of ineffective assistance of counsel as a petition for writ of habeas corpus, we conclude that appellant's claims are not supported by the record.   He claims that his counsel failed to get him the help he needed and deserved.   Yet, the letter from the psychiatrist indicates appellant was treated at Patton State Hospital after he was arrested and returned under section 1372.   The psychiatrist opined that appellant was doing reasonably well on medication and that he does not qualify for legal insanity.   The psychiatrist noted that appellant did not describe command hallucinations asking him to commit the robbery and had no specific delusions towards the victim or the money or the liquor store.   The psychiatrist concluded that appellant knew the nature and quality of his act and that he knew what he was doing was wrong.   Appellant does not convince us that his counsel was ineffective.  (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an appellate court should not find ineffective assistance of counsel unless all relevant facts are developed in the record].)

We have examined the entire record and are satisfied that appellant's attorney has fully complied with her responsibilities and that no arguable issues exist.  (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.




FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.


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