IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
July 6, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD ISAAC LOPEZ, DEFENDANT AND APPELLANT.
Super. Ct. No. CM033556
The opinion of the court was delivered by: Hoch , J.
P. v. Lopez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant filed a supplemental brief cursorily raising several issues. We address these issues, in addition to undertaking a review of the record as required by Wende, and affirm the judgment.
On May 7, 2010, defendant Richard Isaac Lopez entered the victim's home through an open bathroom window. He stole bank cards, gift cards, a laptop computer and accessories, cash, and approximately $20,000 in jewelry. The total estimated loss was $30,000.
Police investigation led officers to Skylee Shuey's house. Shuey was romantically involved with defendant. She identified photographs of jewelry taken during the burglary. She said defendant had given her some of the jewelry during the course of their relationship and asked her to pawn jewelry after she broke up with him. Defendant was in his vehicle when he was located by officers. The vehicle contained property stolen from the victim's home. During a police interview, defendant admitted burglarizing the victim's home.
Defendant pled no contest to first degree residential burglary. (Pen. Code, § 459.)*fn1 He also admitted he had served a prior prison term within the meaning of section 667.5. In exchange for his plea, additional allegations were dismissed and defendant was promised a maximum prison sentence of seven years.
The trial court sentenced defendant to the upper term of six years for the burglary and a consecutive one year for the prior prison term enhancement. Defendant was ordered to pay a restitution fine in the amount of $200 and victim restitution in the amount of $30,000. (§ 1202.4) The court also imposed various fines and fees, totaling $66.
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5)
First, defendant appears to claim there was prosecutorial bribery involved with respect to his sentencing. His claim relates to the prosecutor's statement prior to sentencing that if the stolen jewelry were returned, the People would not "pound the table so hard for the upper term." This comment was based on the prosecutor's understanding that after execution of the search warrant, defendant's girlfriend had taken defendant's pawn receipts and retrieved the jewelry from the pawn shop. We find no impropriety.
As pointed out by the trial court, the return of the stolen property would be a valid consideration during sentencing, thereby making it appropriate for the People to consider when submitting a prison term recommendation to the court. California Rules of Court, rule 4.421, which sets forth circumstances in aggravation to be considered during sentencing includes, as an aggravating factor, that "[t]he crime involved an attempted or actual taking or damage of great monetary value." (Cal. Rules of Court, rule 4.421(a)(9).) Likewise, that "[t]he defendant made restitution to the victim" is listed as a circumstance in mitigation. (Cal. Rules of Court, rule 4.423(b)(5).) Thus, the prosecutor's statement that the People would not push as hard for the upper term if the stolen jewelry were returned was not improper.
Next, defendant complains that his trial attorney promised him he would receive the lower term and, instead, he received the upper term plus a one-year enhancement. The alleged promise by defendant's attorney, however, is not in the record and therefore, is not an appropriate matter for appeal. (People v. Mosqueda (1970) 5 Cal.App.3d 540, 546.) Moreover, defendant's claim is belied by his own statement at the entry of plea hearing that no one promised him anything.
Defendant also complains that his trial attorney did not adequately communicate with him. Again, as defendant acknowledges, the facts supporting these allegations are not contained in the record. Thus, the contention fails because it is based on facts outside of the appellate record. (People v. Mosqueda, supra, 5 Cal.App.3d at p. 546.) Moreover, any complaints about counsel's performance prior to the entry of the plea attacks the validity of the plea. As defendant did not obtain a certificate of probable cause, the issue is not cognizable on appeal. (§ 1237.5; People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
Finally, defendant alleges that, contrary to information set forth in the probation report, he did not admit commission of the crime to the police detective. To the extent defendant is challenging his guilt, this claim is not properly addressed in this appeal. Issues going to guilt or innocence are removed from consideration upon entry of the plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Additionally, defendant did not object to the probation report in the trial court. Accordingly, any claims relating to errors in the report are forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234.)
Having also undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
We do, however, note a few minor clerical errors in the abstract of judgment. The abstract of judgment incorrectly states that the $10 theft fine imposed pursuant to section 1202.4 was imposed pursuant to "PC 12022.5." It also states that two $1 DNA identification fund fees were imposed pursuant to Government Code section 76104.6. One of those fees was actually imposed pursuant to Government Code section 76104.7. We shall direct the trial court to correct the abstract of judgment accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that the $10 fine was imposed pursuant to Penal Code section 1202.4 and that one of the $1 DNA identification fund fees was imposed pursuant to Government Code section 76104.7. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. HULL , J.