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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JON TERRY BUTLER, Defendant and Appellant.


Decided: October 27, 2011


Defendant and appellant Jon Terry Butler appeals from a judgment entered upon a plea of no contest to charges of assault with a semiautomatic firearm and making a criminal threat.   His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ), raising no issues other than pointing out that the abstract of judgment erroneously refers to count 2 instead of count 7. On July 18, 2011, we notified defendant of his counsel's brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered.   That time has elapsed, and defendant has submitted no brief or letter.

Upon reviewing the entire record, we have determined that although defendant has appealed from a judgment entered upon a plea agreement, he has not satisfied the prerequisites to such an appeal.   We thus order the correction of the abstract of judgment and dismiss the appeal.

Defendant was charged with the following six felonies:  assault with a semiautomatic firearm in violation of Penal Code section 245, subdivision (b) (count 1); 1  possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) (count 2);  possession of ammunition by a felon in violation of section 12316, subdivision (b)(1) (count 3);  possession of a large capacity magazine in violation of section 12020, subdivision (a)(2) (count 4);  possession of a concealed firearm in a vehicle in violation of section 12025, subdivision (a)(1) (count 5);  and making a criminal threat in violation of section 422 (count 7).   In addition, count 6 alleged that defendant committed a misdemeanor violation of Vehicle Code section 14601.1, subdivision (a), driving with a suspended or revoked driver's license.   The information specially alleged with regard to count 7 that defendant personally used a firearm in the commission of the offense.

After several continuances, the case was called for jury trial on January 31, 2011.   At that time, the parties announced a settlement.   Defendant agreed to plead nolo contendere to count 1 (possession of a semiautomatic firearm) and count 7 (criminal threat), in exchange for a sentence of the low term of three years in state prison as to count 1, with a concurrent middle term as to count 7. Defendant was not required to admit the firearm allegation alleged as to count 7. However, in exchange for a 60–day continuance of sentencing, defendant entered a conditional admission to the firearm allegation, as well as a Cruz waiver,2 agreeing that if he did not appear at the sentencing hearing on March 23, 2011, the trial court would not be bound by the sentence set forth in the plea agreement.

After he was informed of his trial rights and possible consequences of his plea, defendant entered the plea as agreed.   Defendant returned for sentencing on March 23, 2011, and was allowed to withdraw his admission to the firearm allegation.   The trial court sentenced defendant according to the plea agreement to the low term of three years as to count 1, and the middle term of two years as to count 7, to run concurrently with count 1. The remaining counts were dismissed.   The court granted two days of custody credit, imposed mandatory fines and fees, and ordered defendant to provide a DNA sample and fingerprint impressions.

Defendant filed a timely notice of appeal, but did not obtain a certificate of probable cause.   His notice of appeal indicates that it was directed to the sentence stipulated pursuant the plea agreement.   Such a challenge is an attack on the validity of the plea.  (People v. Hodges (2009) 174 Cal.App.4th 1096, 1103–1104.)   A defendant may not challenge the validity of the plea on appeal without a certificate of probable cause.  (People v. Cuevas (2008) 44 Cal.4th 374, 376;  People v. Shelton (2006) 37 Cal.4th 759, 769.)   Thus, the appeal must be dismissed.  (People v. Hodges, supra, at p. 1112.)

Because of counsel's compliance with the Wende procedure and our review of the record, we conclude appellant has received adequate and effective appellate review of the judgment entered against him in this case.  (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112–113.)

The trial court is directed to prepare a new abstract of judgment reflecting that the sentence for the violation of section 422 was imposed as to count 7, rather than count 2, and to forward a copy to the Department of Corrections and Rehabilitation.   The appeal is dismissed.



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.

FN2. See People v. Masloski (2001) 25 Cal.4th 1212, 1221;  People v. Cruz (1988) 44 Cal.3d 1247..  FN2. See People v. Masloski (2001) 25 Cal.4th 1212, 1221;  People v. Cruz (1988) 44 Cal.3d 1247.