Filed 7/29/14 P. v. Winchel CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C075400

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F07082)

         v.

THOMAS LAING WINCHEL,

                   Defendant and Appellant.




         Appointed counsel for defendant Thomas Laing Winchel has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Finding no errors, we affirm the judgment.
                                                  BACKGROUND
         Defendant was charged with criminal threats against three individual victims (Pen.
Code, § 422 -- counts one, three & five)1 and with assaulting two of those victims with a



1        Undesignated statutory references are to the Penal Code.

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deadly weapon (§ 245, subd. (a)(1) -- counts two & four). It was also alleged defendant
personally used a knife against one victim and a spear against the other two victims in the
commission of these crimes making the charged offenses serious felonies pursuant to
section 1192.7, subdivision (c)(23), and that he was ineligible for a county jail sentence
due to a prior serious or violent felony conviction.
       Defendant pleaded no contest to assaulting an individual with means of force
likely to cause great bodily injury (§ 245, subd. (a)(4) -- count two), a nonstrike, in
exchange for a promise of no state prison time at the outset, probation including 365 days
in county jail, and a dismissal of all other charges. The factual basis to substantiate the
plea was that on or about November 1, 2013, defendant pointed a knife at one Stewart
Wright and attempted to stab him with it. The record is silent with regard to the serious
felony allegations. The trial court suspended imposition of sentencing and granted
probation for a term of five years subject to certain terms and conditions including one
year in county jail. The court also imposed various fines, fees, and assessments, and
ordered defendant to pay victim restitution.
       Defendant appealed; his request for a certificate of probable cause was denied.
                                       DISCUSSION
       Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days elapsed, and we received no communication from defendant. Having undertaken an
examination of the entire record, we find no arguable error that would result in a
disposition more favorable to defendant.
       We note that the parties’ agreement that the disposition would be a nonstrike is of
no consequence if the facts pleaded and proved establish that the offense was a serious
felony. Here, defendant pleaded no contest to assault with means of force likely to cause

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great bodily injury and the factual basis for the plea does not demonstrate that defendant
personally inflicted great bodily injury; if the inquiry ended there, this offense would
plainly be a nonstrike. (§§ 667, subd. (d), 667.5, subd. (c)(8), 1192.7, subd. (c)(8).)
However, it was also alleged and the factual basis indicates that defendant personally
used a deadly weapon -- a knife -- which would render this offense a serious felony. (§
1192.7, subd. (c)(23); People v. Equarte (1986) 42 Cal.3d 456, 465; see also People v.
Herd (1963) 220 Cal.App.2d 847, 850 [knife may be a deadly weapon].) Nonetheless,
because defendant did not admit the serious felony allegations and the trial court made no
findings as to those allegations, they were essentially dismissed for purposes of the
instant conviction. (People v. Leslie (1996) 47 Cal.App.4th 198, 204.) Therefore, we
find no error in the judgment and sentencing of this offense as a nonstrike.
       But, the allegations and factual basis supporting them may be considered in any
subsequent felony conviction to establish that this offense was a serious felony. (People
v. Leslie, supra, 47 Cal.App.4th at pp. 204-205.) To the extent the promise that this
conviction would be a nonstrike can be interpreted as having bearing in future felony
proceedings, the promise is illusory and could be considered an improper inducement
thereby voiding defendant’s plea. (See People v. Hollins (1993) 15 Cal.App.4th 567, 575
[illusory promise may void plea].) However, we are precluded from addressing any error
relating to the validity of defendant’s plea because he failed to obtain a certificate of
probable cause. (§ 1237.5; see also People v. Panizzon (1996) 13 Cal.4th 68, 76.)
                                       DISPOSITION
       The judgment is affirmed.

                                                         NICHOLSON              , J.

We concur:

      BLEASE                 , Acting P. J.

      MAURO                  , J.

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