People v. Sermeno CA3 ( 2014 )

Filed 6/5/14 P. v. Sermeno 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C072321
Plaintiff and Respondent, (Super. Ct. No. CM035385)
v.
LARRY ALTAMIRANO SERMENO,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
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PROCEDURAL AND FACTUAL BACKGROUND1
Defendant, Victims 1 and 2 and some other friends were drinking alcohol at
Paradise High School. Defendant took Victim 1 away from the group, hit her on the side
of her head and face, grabbed her neck and hair and demanded, “Suck my dick bitch, or
else.” Victim 2 saw what was happening and “came at” defendant asking, “What the
fuck are you doing?” She punched defendant in the arm and chest. Defendant responded
by repeatedly punching, kicking and choking Victim 2. Victim 2 fought back and
defendant stabbed her in the neck. As a result of the stab wound, Victim 2 suffered a life-
threatening infection and had to have open-heart surgery. At one point she was given
only a 40 percent chance of survival.
An information charged defendant with forcible oral copulation (Pen. Code,
§ 288a, subd. (c)(2)),2 assault with intent to commit a felony (§ 220, subd. (a)) with the
enhancement allegations that defendant used a deadly weapon (§ 12022.3, subd. (a)) and
inflicted great bodily injury (§ 12022.8), and assault with a deadly weapon (§ 245, subd.
(a)(1)) with the enhancement allegations that defendant personally used a deadly weapon
(§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The People amended the information and defendant pleaded no contest to oral
copulation of an unconscious person (§ 288a, subd. (i)) and assault with a deadly weapon
(§ 245, subd. (a)(1)) and admitted the enhancement allegation that he had inflicted great
bodily injury on the victim (§ 12022.7, subd. (a)). Pursuant to the plea agreement, the
remaining charges and enhancement allegations were dismissed. The trial court
sentenced defendant to an aggregate term of 10 years in state prison, ordered various
1 Because this matter was resolved by plea, the facts are taken from the probation report,
as that served as the stipulated factual basis for the plea.
2 Undesignated statutory references are to the Penal Code in effect at the time of
defendant’s crimes.
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fines and fees and awarded defendant a total of 437 days of presentence custody credit.
The trial court denied defendant’s request for a certificate of probable cause. (§ 1237.5.)
WENDE REVIEW
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and, pursuant to Wende, requesting the court to
review the record and determine whether there are any arguable issues on appeal.
Defendant was advised by counsel of the right to file a supplemental brief within 30 days
of the date of filing of the opening brief.
Defendant has filed a supplemental brief contending he received ineffective
assistance of trial counsel based on counsel’s failure to present “the mitigating
circumstance of insufficiency of evidence” at sentencing, which he claims could have
resulted in a grant of probation, and counsel’s failure to bring a motion to withdraw the
plea. Defendant’s claims on appeal are not cognizable in the absence of a certificate of
probable cause.
“Even when a defendant purports to challenge only the sentence imposed, a
certificate of probable cause is required if the challenge goes to an aspect of the sentence
to which the defendant agreed as an integral part of a plea agreement.” (People v.
Johnson (2009) 47 Cal. 4th 668, 678.) Here, by virtue of his plea, defendant admitted
there was sufficient evidence to support the charges. (People v. Marlin (2004)
124 Cal. App. 4th 559, 566-567.) Because he admitted the sufficiency of the evidence, he
cannot now base an appellate challenge, even to sentencing, on its alleged insufficiency.
(See Johnson, supra, 47 Cal.4th at p. 678.) A certificate of probable cause is also
required to assert a claim of ineffective assistance of counsel in failing to present a
motion to withdraw the plea. (Id. at pp. 684-685.)
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We have undertaken an examination of the entire record pursuant to Wende, and
we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
MURRAY , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
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