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The People v. Michelle Lynn Martinez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


April 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHELLE LYNN MARTINEZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F2930, 10F3962, 10F3974, 10F4734)

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

P. v. Martinez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Michelle Lynn Martinez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no concerns regarding presentence custody credits. We will affirm the judgment.

I

Defendant entered a negotiated plea encompassing four separate cases. In case No. 10F3974, defendant pleaded no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378) and admitted a prior felony drug conviction (Health & Saf. Code, § 11370.2, subd. (c)); in case No. 10F2930, defendant pleaded no contest to evading a peace officer with disregard for public safety (Veh. Code, § 2800.2), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted a prior felony drug conviction (Health & Saf. Code, § 11370.2, subd. (c)); in case No. 10F3962, defendant pleaded no contest to first degree burglary (Pen. Code, § 459); and in case No. 10F4734, defendant pleaded no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378). Defendant entered her pleas in exchange for dismissal of other charges against her and a sentencing lid of 11 years.

The trial court denied probation and sentenced defendant to 11 years in state prison, awarding her presentence custody credits. The court ordered defendant to pay specified fees, fines, and assessments.

Defendant filed two notices of appeal and both times the trial court denied her requests for a certificate of probable cause.

II

Appointed counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days after filing of the opening brief.

Defendant filed a supplemental brief. The supplemental brief is difficult to understand, but it appears to challenge the evidence against her and the validity of her no contest pleas. It also appears to assert ineffective assistance of counsel.

Defendant's claims of error are asserted without headings, and without either identifying the procedural context of the error or citing appropriate authority in support of the claimed error. (Lady v. Worthingham (1942) 55 Cal.App.2d 396, 397 ["'brief or petition must present each point separately under an appropriate heading, showing the nature of the question to be presented or the point to be made'"]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [where appellant asserts a point without argument or authority, "it is deemed to be without foundation and requires no discussion by the reviewing court"].)

In any event, defendant's claims are barred because she did not obtain a certificate of probable cause. Defendant's claims either constitute a challenge to the validity of the pleas or address matters occurring prior to the pleas. Absent a certificate of probable cause, such claims are barred.

"A defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere,' unless [s]he has obtained a certificate of probable cause. ([Pen. Code,] § 1237.5, subd. (b); see People v. Buttram (2003) 30 Cal.4th 773, 790 . . . .)" (People v. Cuevas (2008) 44 Cal.4th 374, 379.) Even if defendant does not frame the issue as an attack on the pleas, we assess the effect of defendant's claims. (See People v. Emery (2006) 140 Cal.App.4th 560, 564-565.) To the extent her claims challenge the validity of her respective pleas or are unrelated to matters occurring after the pleas, they are barred by her failure to obtain a certificate of probable cause. (Id. at p. 562.)

Defendant contends that her counsel denied her requests to file motions to suppress certain evidence, misled and confused her with respect to her plea, and "did not even question as to witnesses and or a defense of any kind only insinuating that with all my other charges and cases there is no point in fighting because it looked bad." Those claims are based on matters occurring prior to the pleas, thus requiring a certificate of probable cause. (People v. Rabanales (2008) 168 Cal.App.4th 494, 500 [no exception to certificate of probable cause requirement unless appeal is based on "'[g]rounds that arose after entry of the plea and do not affect the plea's validity'"].) Moreover, the validity of those claims is dependent upon the validity of the no contest pleas, in which defendant stipulated to the factual basis as contained in the various reports and preliminary hearing transcripts. Defendant's claim of error is in part an attack on the plea itself, thus requiring a certificate of probable cause. (People v. Emery, supra, 140 Cal.App.4th at p. 565.)

III

Moreover, the recent amendments to Penal Code sections 2933 and 4019 do not operate to modify defendant's entitlement to credit, as she was committed for, among other things, a serious felony. (Pen. Code, §§ 2933, subd. (e)(3), 4019, former subds. (b) & (c).)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. BUTZ , J.

20110412

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