Filed 10/16/15 P. v. Chavez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063175

v.                                                                       (Super.Ct.No. FVI1400446)

JOEL CHAVEZ,                                                             OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Joel Chavez, in pro. per.; and Jean Matulis, under appointment by the Court of

Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.




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         Defendant and appellant Joel Chavez was charged by felony complaint with one

count of first degree burglary. (Pen. Code,1 § 459, count 1.) The complaint also alleged

that defendant had one prior strike conviction (§§ 1170.12, subds. (a)-(d) & 667,

subds. (b)-(i)), had served one prior prison term (§ 667.5, subd. (b)), and had one prior

serious felony conviction (§667, subd. (a)(1)). On April 24, 2014, the People moved to

orally amend the complaint to include grand theft. (§ 487, subd. (a), count 2.) Pursuant

to a plea agreement, defendant pled no contest to count 2. He decided to enter the plea

agreement so that he would not pick up another strike conviction. The parties stipulated

that there was a factual basis for the plea. Defendant also admitted the prior strike

conviction. The court dismissed the remaining count and allegations, in accordance with

the plea agreement. On July 25, 2014, the court sentenced defendant to the agreed upon

term of six years in state prison, which consisted of three years on count 2, doubled

pursuant to the prior strike.

         On January 16, 2015, defendant filed a petition for resentencing under section

1170.18. The court denied the petition.

         Defendant subsequently filed a notice of appeal, challenging the denial of the

resentencing petition. We affirm the judgment.




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


                                                2
                               FACTUAL BACKGROUND2

       Defendant and his girlfriend went into the victim’s home and stole a 43-inch flat

screen television. The television was recovered and returned to the victim.

                                       DISCUSSION

       Defendant appealed and, upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case and one potential arguable issue: whether, under the circumstances of this case,

the court can look behind the record of conviction to establish eligibility for reduction of

the current felony offense to a misdemeanor under section 1170.18. Counsel has also

requested this court to undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, which

he has done. In a brief, handwritten letter, defendant asserts his belief that his sentence

was excessive. He states that his committed offense was grand theft (§ 487), which

applies when the value of the property taken exceeds $950. He then states that the

property stolen here was worth $449, which would make his offense a misdemeanor. He

further alleges that his offense was not violent, but was a “simple petty theft and

misunderstanding.”

       At the outset, we note that defendant’s notice of appeal states that he is appealing

from the denial of his Proposition 47 petition. Thus, he should have raised his claim in a


       2   The factual background is taken from the police report.


                                              3
direct appeal from the judgment. However, he pled no contest. Section 1237.5 reads:

“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of

guilty or nolo contendere, . . . 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.” The record on appeal does

not contain a certificate of probable cause.

       Moreover, defendant’s claim – essentially, that there was insufficient evidence to

support his conviction – has been waived. “[A] guilty plea constitutes an admission of

every element of the offense charged and constitutes a conclusive admission of guilt.

[Citation.] It waives a trial and obviates the need for the prosecution to come forward

with any evidence. [Citations.] A guilty plea thus concedes that the prosecution

possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a

reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions

regarding the evidence, including its sufficiency or admissibility, and this is true whether

or not the subsequent claim of evidentiary error is founded on constitutional violations.

[Citation.] By pleading guilty a defendant ‘[waives] any right to question how evidence

had been obtained just as fully and effectively as he [waives] any right to have his

conviction reviewed on the merits.’ [Citation.]” (People v. Turner (1985) 171

Cal.App.3d 116, 125-126, italics added, fn. omitted.) Defendant entered a plea

agreement, under which he pled no contest to a charge of grand theft and agreed to a


                                               4
sentence of six years in state prison. (§ 487.) In exchange, the People agreed to dismiss

the charge of first degree burglary. (§ 459.) Defendant acknowledged his understanding

that a no contest plea would be treated the same as a guilty plea, for all purposes.

(§ 1016.) Thus, pursuant to the plea, he conceded that the prosecution had sufficient

evidence to support his conviction of grand theft. (Turner, at p. 125.)

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                                            J.


We concur:


RAMIREZ
                        P. J.


CODRINGTON
                           J.




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