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The People v. John Buenaflor

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


December 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN BUENAFLOR, DEFENDANT AND APPELLANT.

Alameda County Super. Ct. No. H48762

The opinion of the court was delivered by: Needham, J.

P. v. Buenaflor CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant John Buenaflor appeals from a judgment sentencing him to eight years in prison following his entry of a no contest plea to one count of second degree robbery and his admission of a firearm use enhancement allegation. (Pen. Code, §§ 211, 12022.5, subd. (a).)*fn1 His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We affirm.

I. FACTS AND PROCEDURAL HISTORY

In a felony complaint filed July 27, 2009, appellant was charged with one count of second degree robbery and one count of possessing the drug MDMA (ecstasy) for sale. (§ 211, Health & Saf. Code, § 11378.) As to the robbery count, it was alleged that appellant had personally and intentionally discharged a firearm causing great bodily injury within the meaning of sections 12022.7, subdivision (a) and 12022.53, subdivision (d), had personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and had personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b).

Before a preliminary hearing was held, appellant entered a guilty plea to second degree robbery and admitted a firearm use enhancement allegation under section 12022.5, subdivision (a). It was agreed that in exchange for his plea, the remaining count and allegations would be dismissed and appellant would be sentenced to prison for eight years (the five-year aggravated term on the robbery count and the three-year mitigated term on the firearm enhancement). As a factual basis for the plea, appellant (through his counsel) agreed that the evidence could reasonably show that he and another man decided to make a drug purchase from the victim, that they entered a vehicle driven by the victim, that appellant held a gun to the right side of the victim's head while his companion held a gun to the victim's ribcage, that appellant's gun discharged and hit the victim's hand as the victim attempted to brush the gun away, and that appellant and his companion fled with some cash and two baggies of drugs.

Appellant was sentenced to prison for the agreed-upon term of eight years. He filed a notice of appeal challenging the validity of his plea, accompanied by a request for a certificate of probable cause under section 1237.5 stating that the court was advised during an unreported conference that he wished to withdraw his plea. The superior court denied the request for a certificate of probable cause.

II. DISCUSSION

As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.

The court imposed the stipulated sentence for which appellant bargained. Although appellant states in his application for a certificate of probable cause that he wanted to withdraw his plea, he was fully advised of his constitutional rights and the direct consequences of that plea before it was entered, and the record does not reveal any grounds for setting the plea aside. In any event, appellant's failure to secure a certificate of probable cause renders his appeal inoperative with respect to any challenge to the validity of the plea. (§ 1237.5; Cal. Rules of Ct., rule 8.304(b); People v. Panizzon (1996) 13 Cal.4th 68, 76.) This would include any claim that appellant should have been permitted to withdraw his plea or that a hearing should have been held on that issue, as well as any challenge to the validity of the stipulated sentence. (See People v. Johnson (2009) 47 Cal.4th 668, 673, 676-685; People v. Hodges (2009) 174 Cal.App.4th 1096, 1103.)

Based on our review of the record, we are satisfied that appellant's appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)

III. DISPOSITION

The judgment is affirmed.

We concur.

JONES, P. J.

BRUINIERS, J.


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