Filed 8/6/13 P. v. Flores CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047880

         v.                                                            (Super. Ct. No. 07HF1543)

JUAN VARGAS FLORES,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
                   Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
              We appointed counsel to represent Juan Vargas Flores on appeal. Counsel
filed a brief that set forth the facts of the case. Counsel did not argue against his client
but advised the court no issues were found to argue on his behalf. To assist the court
with its independent review, counsel provided the court with information as to issues that
might arguably support an appeal. Counsel provided information on three issues:
(1) whether Flores was properly advised of his constitutional rights prior to his guilty
pleas; (2) whether there was a factual basis for the guilty pleas; and (3) whether the
sentence was consistent with the plea agreement. Flores was given 30 days to file written
argument on his own behalf. Flores timely filed a letter with this court in response.
              In his letter, Flores indicated in a rambling fashion various complaints
about his attorney. Among other allegations, Flores alleged his lawyer was incompetent,
discriminated against Latinos, and conspired with the prosecution to secure maximum
sentences for her clients. Flores also asserted the victim was a liar and a thief and that he
had been coerced into giving up his right to a jury trial and pleading guilty.
              Counsel did not provide the court with any specific information to assist it
with its independent review pursuant to Anders v. California (1967) 386 U.S. 738.
Rather, counsel requested that this court independently examine the record on appeal.
We have reviewed the information provided by Flores and we have independently
examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d
436.) The judgment is affirmed.
                                           FACTS
              An amended information charged Flores with the following: 11 counts of
lewd act upon a child under 14 between the dates of January 1, 2007, and July 27, 2007,
in violation of Penal Code1 section 288, subdivision (a) (counts 1-11); two counts of



1             All further statutory references are to the Penal Code.


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aggravated sexual assault on a child on July 28, 2007, in violation of section 269,
subdivision (a)(1) (counts 12 and 15); two counts of a forcible lewd act upon a child
under 14 on July 28, 2007, in violation of section 288, subdivision (b)(1) (counts 13 &
16); two counts of a lewd act upon a child under 14 on July 28, 2007, in violation of
section 288, subdivision (a) (counts 14 & 17); and one count of a lewd act upon a child
under 14 between the dates of May 1, 2007, and July 28, 2007, in violation of section
288, subdivision (a) (count 18). The amended information alleged Flores engaged in
substantial sexual conduct with the victim pursuant to section 1203.066,
subdivision (a)(8). All counts involved the same victim.
              Flores pled guilty to counts 1, 2, 4, 5, 6, 10, and 11. He also admitted the
substantial sexual conduct allegations.
              Before accepting the plea, the trial court advised Flores2 that his lawyer and
the prosecutor had engaged in settlement negotiations. As a result, the prosecutor had
agreed to let him plead guilty to only those charges that were consistent with his
statement to the police. The prosecutor indicated Flores would be allowed to plead guilty
to eight counts and the balance of the counts would be dismissed. There was also an
agreement the court would not sentence Flores to more than 18 years in prison. The court
then advised Flores that upon his guilty plea, the prosecutor had agreed to dismiss any
count that was punishable by a life sentence. The court also informed Flores that his
lawyer would be allowed to argue for a sentence less than 18 years. When asked if he
had any questions about the plea offer, Flores stated, “No.” When asked by the court if
he wished to accept the plea offer or reject it, Flores stated, “I accept.”




2             Flores was assisted by a certified Spanish language interpreter.

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               The trial court advised Flores that by pleading guilty to the felony offenses
described, he would be giving up all the rights he would have to a jury trial and the
matter would be continued for a sentencing hearing. When asked if he understood, Flores
stated, “Yes.” The court advised Flores that if he wished to plead guilty he would need to
review documents with his lawyer and sign them. When the court asked if that was all
right, Flores responded, “Yes.”
              After a brief recess, the trial court asked Flores if he understood the
maximum sentence that could be imposed was 20 years, and that under the plea
agreement, the sentence could not exceed 18 years. Flores indicated he understood. The
court confirmed the guilty plea form had been translated into Spanish and the initials on
the form were in fact entered by Flores. The court reviewed in great detail each of the
constitutional rights on the form in open court with Flores. After explaining each
individual constitutional right, the court asked Flores if he gave up that right. The court
also reviewed with Flores the factual basis offered on the guilty plea form. On the guilty
plea form, Flores offered the following factual basis for his pleas and admissions: “In
Orange County, California, on six separate occasions on or about 1/1/07 and 7/27/07 and
again on 7/28/07, I willfully, lewdly and unlawfully committed a lewd and lascivious act
upon the body of Jane Doe, who was under age 14. When I did these acts, I did them to
gratify Jane Doe‟s sexual pleasures and/or my own sexual pleasures. I am not eligible for
probation because I engaged in substantial sexual conduct with Jane Doe as defined
in . . . section 1203.066[, subdivision](a)(8).” Having completed the advisement of rights
and accepting waivers of all these rights, the court accepted guilty pleas on counts 1, 2, 4,
5, 6, 10, and 11. Flores also admitted the special allegations of substantial sexual conduct
that prohibited the granting of probation. Counsel joined in the pleas and the waivers.
The court found Flores had entered knowing, intelligent, and voluntary waivers of all his
constitutional rights and found there was a factual basis for the pleas. Flores waived time
for sentencing and the matter was continued for 23 days.

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              When Flores returned for sentencing, the trial court heard argument from
the prosecutor and from defense counsel. And the court heard from Flores. Flores
expressed his regret for “being weak” and suggested he had been “dominated” by the
victim. He insisted he would never engage in this type of conduct again. The court
imposed a sentence of 16 years in prison.
              Flores did not secure a certificate of probable cause but filed a notice of
appeal indicating “this appeal is after a contested sentencing hearing.”
                                       DISCUSSION
              Section 1237.5 provides: “No appeal shall be taken by the defendant from
a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, except where both of the following are
met: [¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. [¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal with the clerk of the
court.” Flores failed to obtain a certificate of probable cause as required by
section 1237.5.   Accordingly, he is not entitled to a review of the validity of his plea.
(People v. Johnson (2009) 47 Cal.4th 668, 675.)
              Flores asserts he is appealing after a contested sentencing hearing. But the
sentencing was consistent with the plea agreement he entered. Issues that relate to
defendant‟s sentencing in accordance with the plea bargain to which he agreed may not
be raised on appeal. In People v. Panizzon (1996) 13 Cal.4th 68, 89, the California
Supreme Court held that where a defendant is sentenced in accordance with the terms of
a plea bargain that provides for a particular sentence, and then attempts to challenge that
sentence on appeal, he must secure a certificate of probable cause. The court explained




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that because the defendant is “in fact challenging the very sentence to which he agreed as
part of the plea,” the challenge “attacks an integral part of the plea [and] is, in substance,
a challenge to the validity of the plea, which requires compliance with the probable cause
certificate requirements of section 1237.5 and [former California Rules of Court,] rule
31(d).” (Id. at p. 73.)
               Here, the record clearly demonstrates the parties expressly agreed to
imposition of a sentence not greater than 18 years. Flores was facing a possible sentence
of 20 years. The court imposed a sentence of 16 years. Since Flores received the
sentence for which he bargained, any challenge to his sentence constitutes a challenge to
the validity of his plea. (People v. Cuevas (2008) 44 Cal.4th 374, 384.)
               If we were to find a certificate of probable cause was not required and
consider the merits of Flores‟s claims, we conclude his claims are meritless. We will first
address the issues suggested by counsel and then the issues raised by Flores in the letter
he sent to the court.
Advisement of Rights
               In Boykin v. Alabama (1969) 395 U.S. 238, 242, the United States Supreme
Court held that “[i]t was error . . . for the trial judge to accept petitioner‟s guilty plea
without an affirmative showing that it was intelligent and voluntary.” The California
Supreme Court in In re Tahl (1969) 1 Cal.3d 122, 132, held that to comply with the
requirements of Boykin, “the record must contain on its face direct evidence that the
accused was aware, or made aware, of his right to confrontation, to a jury trial, and
against self-incrimination, as well as the nature of the charge and the consequences of his
plea. Each must be enumerated and responses elicited from the person of the defendant.”
“[U]nlike the admonition of constitutional rights, . . . advisement as to the consequences
of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is




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„a judicially declared rule of criminal procedure.‟” (People v. Walker (1991) 54 Cal.3d
1013, 1022, overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177,
183.)
               Here, the record reflects that before initialing and signing the form, Flores
was assisted by an interpreter in reviewing the guilty plea form. The form advised him
he had several rights including the right to a jury trial, the right to confront and
cross-examine witnesses, to present a defense, and his right against self-incrimination.
Flores initialed and signed the form and counsel reviewed the form with him. The court
then painstakingly reviewed the rights again before accepting the waivers. The record
affirmatively reflects Flores was explicitly advised of all of his rights and entered
knowing and voluntary waivers of all of his rights. Accordingly, we conclude Flores was
properly advised of his constitutional rights prior to entering his guilty pleas and
admission.
Factual Basis for Plea
               “[A] trial court possesses wide discretion in determining whether a
sufficient factual basis exists for a guilty plea. The trial court‟s acceptance of the guilty
plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will
be reversed only for abuse of discretion. [Citation.] A finding of error under this
standard will qualify as harmless where the contents of the record support a finding of a
factual basis for the conditional plea. [Citations.]” (People v. Holmes (2004) 32 Cal.4th
432, 443.) The court need not obtain an element-by-element factual basis for the plea,
but need only obtain a prima facie factual basis. (People v. Marlin (2004)
124 Cal.App.4th 559, 572.) We find there was an adequate factual basis offered to the
court and find no abuse of discretion.




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Sentence Consistent with Plea Agreement
              Before accepting the plea, the trial court informed Flores that as a result of
plea negotiations between the prosecutor and his lawyers, Flores would be allowed to
plead guilty to only those charges that were consistent with his statement to the police
and that under the agreement, the court would not sentence Flores to more than 18 years
in prison. The court also informed Flores his lawyer would be allowed to argue for a
sentence of less than 18 years. When asked if he had any questions about the plea offer,
Flores stated, “No.” When asked by the court if he wished to accept the plea offer or
reject it, Flores stated, “I accept.” As agreed, at the sentencing hearing Flores‟s defense
counsel was allowed to argue for a sentence of less than 18 years. The court then
imposed a sentence of 16 years in state prison. This sentence was clearly consistent with
the plea agreement. We find no error.
Flores’s Assertions
              The complaints Flores lodges against his lawyer are unsupported by the
record. Flores states his lawyer told him that if he entered guilty pleas “the judge would
have the last word leaving me free or with [three] or [five] or [seven] years with all of my
credit I will go home.” Nonsense. Before taking the plea, the court went to great lengths
to explain to Flores the only promise was the sentence would be no be greater than
18 years. At the sentencing hearing, the court began by stating there had been an initial
agreement “that the court could sentence the defendant within the court‟s discretion to
nothing greater than 18 years in prison.” Both counsel indicated that was the
understanding of the plea agreement. Flores was present as the prosecutor and his lawyer
argued as to the appropriate prison term. When Flores addressed the court at his
sentencing hearing, he sought to minimize his behavior by telling the court he “never hurt
that little girl.” “I never forced her.” Flores stated he had “paid being locked up here for
something that I see as unfair because I never raped her.” Although his statements could



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be viewed as suggesting he should go free, at no time did Flores suggest he had been
promised a sentence of three, five, or seven years.
              We have reviewed the entire record focusing upon grounds for appeal
arising after entry of the plea. Having done so, we conclude there is no arguable issue on
appeal.
                                      DISPOSITION
              The judgment is affirmed.




                                                 O‟LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



MOORE, J.




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