Filed 2/17/15 P. v. Montgomery CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142342
v.
WILLIAM F. MONTGOMERY,                                               (Napa County
                                                                     Super. Ct. No. CR165007)
         Defendant and Appellant.


         Defendant William F. Montgomery appeals from a judgment placing him on
felony probation after he pleaded no contest to two counts of oral copulation on an
unconscious person. (Pen. Code, § 288a, subd. (f).)1 His court-appointed appellate
counsel has filed a brief raising no issues, but seeking our independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.

                               I. FACTS AND PROCEDURAL HISTORY 2
         During the summer of 2008, defendant was friends with Jane Doe, who was then
17 years old, and her boyfriend Joshua. The three of them sometimes spent the night in
the “rumpus room” of Jane’s house after watching a television program together, sleeping
on the floor in three separate sleeping bags. On two of these nights, defendant placed his

         1
        Further statutory references are to the Penal Code unless otherwise indicated.
         2
        The description of the underlying facts of the offense is taken from the
preliminary hearing.


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penis in Jane’s mouth when she was sleeping and ejaculated. Jane, who was taking
medication that made her drowsy, was not able to awaken fully to stop defendant.
       Because of the friendship between Jane, defendant and Joshua, Jane did not
initially say anything about what had happened. She reported the matter to the Napa
County Sheriff’s Office in August 2012, but because she was reluctant to do a pretext
telephone call, a deputy drove her to the market where defendant worked so she could
confront him directly. Defendant spoke to Jane in front of the deputy and acknowledged
putting his penis in her mouth and ejaculating while she was asleep. He was placed
under arrest and interviewed, at which time he admitted the two separate acts of oral
copulation described by Jane and agreed to write an apology to her.
       Defendant was charged by information with two counts of oral copulation of an
unconscious person.3 He entered a no contest plea to both counts and was placed on
felony probation conditioned on 365 days in local custody. Defendant filed a motion to
withdraw his plea on the day before the sentencing hearing, based on his recollection of
additional facts regarding Jane’s alertness at the time of his acts that he claimed would
negate the element of unconsciousness. The court denied the motion in a post-sentencing
hearing. Defendant filed a notice of appeal indicating his appeal was based on the denial
of his motion to withdraw the plea, and sought a certificate of probable cause under
section 1237.5. The court denied the request for a certificate of probable cause.

                                     II. DISCUSSION
       As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note
that appointed counsel has filed a Wende/Anders brief raising no issues, that defendant
has been advised of his right to file a supplemental brief, and that defendant did not file
such a brief. We have independently reviewed the entire record for potential error and
find none.


       3
        Defendant, who was 17 years old when he committed the offenses, was initially
charged as a juvenile. The case was transferred to adult court after a fitness hearing
under Welfare and Institutions Code section 707.


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       The only ground for defendant’s appeal is the denial of his motion to withdraw his
no contest plea. Because this is essentially an attack on the validity of the plea, he was
required to obtain a certificate of probable cause under section 1237.5 to proceed with his
appeal. (People v. Johnson (2009) 47 Cal.4th 668, 679; People v. Castelan (1995) 32
Cal.App.4th 1185, 1187 (Castelan).) When a certificate of probable cause is denied, as
here, the remedy is to seek a writ of mandate requiring issuance of the certificate.
(Castelan, at p. 1188.) Defendant has not obtained a writ that would enable him to
pursue the appeal on “certificate” grounds, and the notice of appeal does not identify any
“noncertificate” grounds for challenging matters not affecting the validity of the plea.
(See Cal. Rules of Court, rule 8.304(b)(4), formerly rule 31(d); People v. Way (2003) 113
Cal.App.4th 733, 736 (Way).) The appeal is not operative. (Castelan, at p. 1188; Way, at
p. 736.)
       We are satisfied defendant’s appointed attorney has fully complied with the
responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins
(2000) 528 U.S. 259, 283.)

                                    III. DISPOSITION
       The appeal is dismissed.



                                                  NEEDHAM, J.

We concur.


SIMONS, Act. P. J.


BRUINIERS, J.




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