People v. Perez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD247678
- Trial judge
- Kenneth K. So
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Gilbert Nares, McINTYRE
Analysis
The trial court accepted Perez's guilty plea to voluntary manslaughter and attempted murder, imposed the stipulated sentence, and denied a certificate of probable cause. The Court of Appeal affirmed the judgment after conducting an independent review of the record under People v. Wende and finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of judgment following guilty plea and stipulated sentence“A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues.” | de novo | not reached | agree with court The court conducted an independent review of the record as required by People v. Wende and Anders v. California, finding no reasonably arguable issues. The court affirmed the judgment based on this review. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying potential issues and the court to conduct an independent review of the record when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appellate counsel to file a brief identifying potential issues and the court to conduct an independent review of the record when counsel finds no arguable issues.
The appellate opinion: sound — The opinion is procedurally sound as it follows the standard Wende/Anders procedure for reviewing a record when appointed counsel finds no arguable issues. The court correctly identified the procedural posture and applied the appropriate standard of review.
How this analysis was made · dispute it
unusual dispositionAfter Perez pleaded guilty under a plea agreement to voluntary manslaughter and attempted murder with deadly-weapon enhancements, the San Diego Superior Court imposed the stipulated 18-year prison term, imposed fines and fees, awarded 389 actual and 58 conduct days of credit, and denied a certificate of probable cause. On appeal, appointed counsel filed a Wende/Anders brief, Perez filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of the guilty plea and entry of judgment of conviction (whether the plea bars challenges based on insufficiency of evidence, self-defense, and tampered evidence)“does Perez's guilty plea preclude him from challenging his convictions for voluntary manslaughter and attempted murder on the grounds of insufficiency of the evidence, self-defense, and tampered evidence” | unclear | correct | agree with court A guilty plea admits every element of the offense and forecloses appellate review of evidentiary and factual-defense issues; the trial court found a factual basis and the certificate of probable cause was denied, so no cognizable issue exists. The court's conclusion of no arguable issue follows from settled plea law even though the opinion does not cite it. |
Calculation of presentence custody credits (389 actual days and 58 conduct days)“awarded him 389 actual days and 58 conduct days toward his sentence” | unclear | correct | agree with court Voluntary manslaughter and attempted murder are violent felonies, limiting conduct credit to 15 percent; 15 percent of 389 is 58.35, so 58 conduct days is arithmetically correct on the figures stated in the opinion. |
Advisement of constitutional rights and consequences of the plea before acceptance“The trial court questioned Perez regarding the plea agreement and waiver of his constitutional rights, found a factual basis for his plea, and accepted his guilty plea and admissions.” | unclear | correct | agree with court The opinion recites that the trial court questioned Perez on the plea agreement and waiver of rights and found a factual basis, and no supplemental brief contested the advisements; nothing in the opinion suggests a defect. |
Imposition of full consecutive terms and full consecutive enhancements for the subordinate attempted murder count (Pen. Code § 1170.1)“were his full consecutive sentences and full consecutive enhancements unauthorized under section 1170.1?” | unclear | correct | agree with court On its face a full five-year consecutive subordinate term plus a full one-year enhancement departs from the one-third-the-midterm rule of section 1170.1(a), but the sentence was a negotiated, stipulated term Perez agreed to, he waived appeal of it, and the certificate of probable cause was denied; under People v. Hester a defendant who accepts a stipulated sentence is estopped from attacking it as exceeding section 1170.1 limits, and under Panizzon a challenge to a stipulated sentence requires a certificate. The result is correct, though the opinion offers no explanation. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Hester (2000) 22 Cal.4th 290 — A defendant who agrees to a specified sentence as part of a plea bargain is estopped from later complaining that the sentence was imposed in excess of the court's jurisdiction, since the court had fundamental jurisdiction and the defendant received the benefit of the bargain.
- missed: People v. Panizzon (1996) 13 Cal.4th 68 — A challenge to a sentence that was an integral part of a negotiated plea agreement is in substance a challenge to the validity of the plea and requires a certificate of probable cause under Penal Code section 1237.5.
The appellate opinion: sound with gaps — The opinion performs the Wende review it is required to perform and reaches a defensible result, since the plea, the stipulated sentence, the appeal waiver, and the denied certificate of probable cause foreclose each flagged issue. It does not explain why the facially nonconforming full consecutive subordinate term under section 1170.1 is not arguable, which Hester and Panizzon would have answered in a sentence.
Opinion
Filed 4/13/15 P. v. Perez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066159
Plaintiff and Respondent, v. (Super. Ct. No. SCD247678)
DANIEL OMAR PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. Daniel Omar Perez appeals a judgment following his guilty plea to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a))1 and one count of attempted murder (§§ 664, 187, subd. (a)) and admission of the truth of allegations he personally used a deadly and dangerous weapon in committing each of those offenses (§ 12022, subd. (b)(1)).
FACTUAL AND PROCEDURAL BACKGROUND
In October 2013, an information charged Perez with the murder of Charles Berry (§ 187, subd. (a)) and the attempted murder of Randi Jones (§§ 664, 187, subd. (a)) and further alleged that in committing each of those offenses he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). In March 2014, pursuant to a plea agreement, Perez pleaded guilty to one count of voluntary manslaughter (§ 192, subd. (a)) and one count of attempted murder (§§ 664, 187, subd. (a)), and admitted the truth of the deadly weapon use allegations (§ 12022, subd. (b)(1)). His plea form stated that he was induced to plead guilty by the stipulated prison term of 18 years, consisting of the upper term of 11 years for the voluntary manslaughter offense with a one-year consecutive term for the weapon use enhancement and a consecutive lower term of five years for the attempted murder with a one-year consecutive term for the weapon use enhancement. As part of his guilty plea, Perez waived his right to appeal that stipulated sentence. The trial court questioned Perez regarding the plea agreement and waiver of his constitutional rights, 1 All statutory references are to the Penal Code.
2 found a factual basis for his plea, and accepted his guilty plea and admissions. At sentencing, the trial court imposed the stipulated sentence in accordance with Perez's guilty plea, imposed certain fines and fees, and awarded him 389 actual days and 58 conduct days toward his sentence.
Perez timely filed a notice of appeal. The trial court denied his request for a certificate of probable cause.
DISCUSSION
Perez's appointed counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal of the judgment, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel identifies the following possible, but not arguable, issues for our review: (1) does Perez's guilty plea preclude him from challenging his convictions for voluntary manslaughter and attempted murder on the grounds of insufficiency of the evidence, self-defense, and tampered evidence; (2) were his credits correctly calculated; (3) was he properly advised of his constitutional rights and the consequences of pleading before entering his guilty plea; and (4) were his full consecutive sentences and full consecutive enhancements unauthorized under section 1170.1?
We granted Perez permission to file a supplemental brief on his own behalf, but he has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 3 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Perez has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12