Filed 3/12/14 P. v. Magdaleno CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063882

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD229679)

MITCHELL MAGDALENO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert F.

O'Neill, Judge. Affirmed.



         Robert Booher, under appointment by the Court of Appeal, for the Defendant and

Appellant.

         No appearance for the Plaintiff and Respondent.
       In April 2013, after his probation was revoked, Mitchell Magdaleno pleaded guilty

to unlawful sexual intercourse with a minor (Pen. Code,1 § 261.5; count 1) and oral

copulation of a minor (§ 288a, subd. (b)(2); count 2) in exchange for dismissal of

remaining charges and a maximum punishment of two years in state prison. Magdaleno

entered into the April 2013 plea so as to correct an error in an earlier guilty plea he had

entered into in January 2011 as well as an erroneous sentence imposed after his probation

revocation. The trial court sentenced Magdaleno to a two-year low term on count 1 and a

concurrent two-year midterm on count 2. It granted Magdaleno 430 days of actual and

local conduct credits and ordered him to pay various fees and fines. Magdaleno filed the

present appeal. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       After the People charged Magdaleno with four counts of committing a lewd act on

a child 14 or 15 years of age (§ 288, subd. (c)(1)), he pleaded guilty in January 2011 to

one count of unlawful sexual intercourse with a minor (§ 261.5) and another count

identified incorrectly on the plea form as under section "288(a)(2)." The terms of

Magdaleno's plea bargain provided for a maximum punishment of two years in state

prison. In May 2011, Magdaleno was granted three years of probation for his

convictions, the second of which was correctly listed in the order as oral copulation of a

minor under section 288a, subdivision (b)(2). He was ordered to serve 210 days in

county jail with two days of credit.



1      Statutory references are to the Penal Code unless otherwise specified.
                                              2
       In February 2012, Magdaleno admitted violating his probation by failing to attend

sex offender treatment. The trial court, following a probation officer's recommendation,

reinstated probation.

       In March 2013, Magdaleno admitted to seven additional probation violations. The

court revoked his probation and sentenced him to a three-year midterm on count 1 and a

concurrent two-year midterm on count 2.

       On April 26, 2013, the People filed an amended complaint asserting two counts of

section 261.5 violations (counts 1 and 2) and one count of a violation of section 288a,

subdivision (b)(2) (count 3). Observing that Magdaleno was arraigned on an amended

complaint in January 2011 but there was no such complaint in the file, the trial court nunc

pro tunc deemed the amended complaint as filed on January 26, 2011. The court further

explained: "And for purposes of today's hearing, we now have a felony change of plea

form that is correct as to the charges that were in the amended complaint and is correct as

to what the negotiated disposition was as of the date of January 26, 2011."

       Magdaleno then entered into a guilty plea to count 1 and count 3 of the amended

complaint, in exchange for dismissal of the balance of the charges and a two-year "lid."

The factual basis for his plea consisted of Magdaleno's sworn admission (as well as a

written statement initialed by Magdaleno), that he "had unlawful sexual intercourse when

21 years of age or older with a minor under 16 and including oral copulation of same

minor under 16." The court acknowledged that the sentence imposed in March 2013 was

invalid and corrected the felony abstract of judgment to impose a state prison sentence of

two years, consisting of the two-year low term on count 1 and a concurrent two-year

                                             3
midterm on count 3. It ordered Magdaleno to pay a $200 restitution fine under section

1202.4, subdivision (b), a $200 parole revocation restitution fine under section 1202.45,

and an $80 court operations assessment under section 1465.8. The court awarded

Magdaleno 430 days of custody credits.

         Magdaleno timely filed a notice appeal but did not obtain a certificate of probable

cause.

                                        DISCUSSION

         Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal, but asks this court to review the record for

error as mandated by People v. Wende (1979) 25 Cal.3d 436. Under Anders v. California

(1967) 386 U.S. 738, counsel identifies one possible appellate issue: whether

Magdaleno's guilty plea was constitutionally valid. We granted Magdaleno permission to

file a supplemental brief on his own behalf, but he did not respond.

         Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and

Anders v. California, supra, 386 U.S. 738, including the possible issues referred to

Magdaleno's appellate counsel, has revealed no reasonably arguable appellate issue.

Because Magdaleno did not obtain a certificate of probable cause, he cannot challenge

the validity of his guilty plea. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084,

1096-1097.) Magdaleno has been competently represented by counsel on this appeal.




                                              4
                                 DISPOSITION

    The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:



          McCONNELL, P. J.



                     IRION, J.




                                      5
