THE PEOPLE v. BRIAN TRIVINO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Brian Trivino appeals from the judgment entered following his no contest plea to two counts of second degree robbery with the use of a firearm.  (Pen.Code, §§ 211, 12022.53, subd. (b).) ¹  Because he failed to obtain a certificate of probable cause from the superior court, we dismiss the appeal.

Defendant was charged in a third amended complaint with 25 counts of second degree robbery and one count of assault with a firearm (§ 245, subd. (a)(2)).   It was further alleged that he personally used a firearm and a principal was armed with a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a), 12022, subd. (a).)  On July 7, 2010, defendant entered a no contest plea with the understanding that he would be sentenced to a term of 19 years and 4 months in prison.   On October 19, he was sentenced in accordance with that agreement.   On December 10, defendant filed a notice of appeal.   His request for a certificate of probable cause was denied.

After review of the record, defendant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.) ²

On April 29, 2011, we advised defendant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   We have received no response to date.

DISCUSSION

A defendant who has pleaded guilty or no contest to a charge may not obtain appellate review of the validity of his plea unless he has complied with section 1237.5, which requires him or her to secure a certificate of probable cause from the superior court.  (People v. Mendez (1999) 19 Cal.4th 1084, 1088.)  “Such a defendant may obtain review solely of so-called ‘noncertificate’ issues, that is, postplea questions not challenging his plea's validity and/or questions involving a search or seizure whose lawfulness was contested pursuant to section 1538.5,” if the notice of appeal states noncertificate grounds.  (Ibid.)

In the notice of appeal, defendant checked the box stating that his appeal “is based on the sentence or other matters occurring after the plea.”   However, his sentence was the result of a negotiated settlement.  “ ‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.  [Citation.]”  (People v. Shelton (2006) 37 Cal.4th 759, 766.)   Although defendant claimed that his appeal also was based on matters that occurred after the plea, in the notice of appeal he failed to identify the postplea events he is challenging.   Nor did he submit a supplemental brief setting forth his contentions.

As defendant cannot challenge his sentence and he did not state any noncertificate grounds in the notice of appeal, his failure to obtain a certificate of probable cause from the superior court is fatal to his appeal.   (Cal. Rules of Court, rule 8.304(b)(3);  People v. Mendez, supra, 19 Cal.4th at p. 1095.)

Nonetheless, we have examined the entire record and are satisfied that no arguable issues exist and that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 277–279;  People v. Kelly (2006) 40 Cal.4th 106, 118–119.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. Counsel noted that defendant was entitled to two additional days of presentence credit and stated that steps were taken to correct the error in the superior court..  FN2. Counsel noted that defendant was entitled to two additional days of presentence credit and stated that steps were taken to correct the error in the superior court.

WILLHITE, Acting P.J. MANELLA, J.