P. v.Curiel CA2/7 ( 2015 )

Filed 4/7/15 P. v.Curiel CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B256127
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415566)
v.
FERNANDO CURIEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F.
Priver, Judge. Affirmed.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
___________________________
The People filed an information charging Fernando Curiel with possession of a
firearm by a felon (Pen. Code, §29800, subd. (a)(1))1 and specially alleging he had served
three separate prison terms for felonies (§ 667.5, subd. (b)). Represented by appointed
counsel, Curiel pleaded not guilty and denied the prior prison term allegations.
Following jury selection, Curiel entered an open plea of no contest and admitted
the prior prison term allegations for an indicated sentence of two years. At the time he
entered his plea, Curiel was advised of his constitutional rights and the nature and
consequences of the plea, which he stated he understood. Appointed counsel joined in
the waivers of Curiel’s constitutional rights. The trial court expressly found Curiel’s
waivers and plea were voluntary, knowing and intelligent.
The trial court scheduled a sentencing hearing and agreed to release Curiel on his
own recognizance under the terms of a Cruz waiver (People v. Cruz (1988) 44 Cal. 3d
1247, 1254, fn. 5). In accordance with that waiver, Curiel acknowledged he understood
and agreed if he failed to appear for sentencing, he could be sentenced up to the
maximum aggregate state prison term of six years (the three-year upper term for
possession of a firearm by a felon plus one-year for each of the three prior prison term
enhancements) and would not be permitted to withdraw his plea.
On the day set for the sentencing hearing, Curiel appeared with retained counsel
and moved to withdraw his plea on the ground he was coerced by appointed counsel to
enter a plea (§ 1018). The trial court relieved the public defender’s office as counsel of
record, heard and denied the motion, and continued the sentencing hearing.
Curiel did not appear for sentencing, and the trial court ultimately sentenced him
to the upper term of three years for possession of a firearm by a felon and struck the one-
year prior prison term enhancements (§ 1385). The court awarded Curiel presentence
custody credit of 17 days and imposed statutory fees, fines and assessments.
Curiel filed a notice of appeal in which he checked the preprinted box indicating
his appeal was “based on the sentence or other matters occurring after the plea;” he also
1 Statutory references are to this code.
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appears to claim to have been coerced by appointed counsel to enter a plea. Curiel did
not obtain a certificate of probable cause. We appointed counsel to represent Curiel on
appeal.
After examination of the record counsel filed an opening brief in which no issues
were raised. On December 24, 2014, we advised Curiel he had 30 days within which to
submit any contentions or issues he wished us to consider. We have received no
response.
A criminal defendant who appeals following a plea of no contest or guilty without
a certificate of probable cause can only challenge the denial of a motion to suppress
evidence or raise grounds arising after the entry of the plea that do not affect the plea’s
validity. (Cal. Rules of Court, rule 8.304(b)(1).) To the extent Curiel is seeking to
challenge the validity of his plea and his sentence imposed as part of his plea, his appeal
is inoperative. With respect to other potential sentencing or post-plea issues that do not
in substance challenge the validity of the plea itself, we have examined the record and are
satisfied Curiel’s appellate attorney has fully complied with the responsibilities of
counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284
[120 S. Ct. 746, 145 L. Ed. 2d 756]; People v. Kelly (2006) 40 Cal. 4th 106, 112-113;
People v. Wende (1979) 25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J. STROBEL, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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