People v. Filorio CA2/2 ( 2024 )

Filed 10/3/24 P. v. Filorio CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B337089
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA160630)
v.
ALBERTO FILORIO,
Defendant and Appellant.
THE COURT:
Defendant and appellant Alberto Filorio (defendant) appeals the
judgment entered after sentence was imposed upon his violation of
probation. His appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. After defendant
was notified of his counsel’s brief he filed his own letter brief, asserting
that his plea of no contest to assault by force likely to produce great
bodily injury was invalid and defense counsel rendered ineffective
assistance. We have reviewed the entire record and find defendant’s
contentions are not amenable to review on appeal. Finding no other
arguable issues, we affirm the judgment.
BACKGROUND
In 2023 defendant was charged with second degree robbery and
entered into a plea agreement that allowed him to instead plead no
contest to a charge of assault by force likely to produce great bodily
injury, in violation of Penal Code section 245, subdivision (a)(4). In
exchange, defendant was to be placed on two years of formal probation
and dismissal of the robbery charge. Conditions of probation included
completion of a one year drug treatment program as directed by the
Probation Department.
The following month defendant pled no contest to a new
misdemeanor charge and admitted a probation violation in this case.
The trial court imposed and stayed a middle term sentence of three
years in prison, and reinstated probation. Three months later,
defendant was alleged to have violated probation by failing to enroll in
a drug treatment program. Defendant admitted the violation and
sentencing was scheduled for January 23, 2024. On that date
defendant was permitted to represent himself. The trial court rejected
defendant’s request for a retrial and to be reinstated on probation, the
court revoked probation, lifted the stay of execution, and ordered
defendant to serve the three-year prison term.
Defendant filed a timely notice of appeal. The box on the notice
of appeal stating: “This appeal challenges the validity of the plea or
admission,” and the box requesting a certificate of probable cause were
checked. The court denied the request for a certificate of probable
cause.
DISCUSSION
Defendant appeals his conviction of assault by force likely to
produce great bodily injury, asserting his plea of no contest was invalid
because it was not knowing and voluntary for the following reasons: (1)
he did not know of the constitutional rights he was giving up; (2) he did
not understand the consequences of the plea, such as the maximum
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prison and jail terms, probation eligibility, restitution and other fees;
and (3) his attorney provided ineffective assistance such that defendant
would not have pled no contest if he had received competent legal
advice. Defendant suggests he was not informed of the nature and
cause of the accusations or afforded the assistance of counsel; he was
compelled to be a witness against himself; and was denied the right to
be confronted by witnesses against him.
“No appeal shall be taken by the defendant from a judgment of
conviction upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, 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.” (Pen. Code, § 1237.5; see Cal. Rules of Court, rule
8.304(b)(1)(A).) As relevant here, where the trial court denies a
certificate of probable cause required to appeal, the appeal will be
limited to “[t]he sentence or other matters occurring after the plea or
admission that do not affect the validity of the plea or admission.” (Cal.
Rules of Court, rule 8.304(b)(2)(B), italics added.)
These rules apply equally to claims of ineffective assistance of
counsel. (See People v. Johnson (2009) 47 Cal.4th 668, 679–680; People
v. Stubbs (1998) 61 Cal.App.4th 243, 244.) As all of defendant’s
contentions and arguments concern matters which allegedly occurred
prior to or during the time the plea was entered, including the alleged
errors of counsel, the appropriate procedure is to dismiss the appeal.
(People v. Stubbs, supra, at p. 245; see People v. Johnson, supra, at pp.
673, 685 [affirming dismissal by court of appeal].)
We have examined the entire record and are satisfied defendant’s
appellate counsel has fully complied with his responsibilities and no
arguable issue exists. We conclude defendant has, by virtue of
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counsel’s compliance with the Wende procedure and our review of the
record, received adequate and effective appellate review of the
judgment entered against him in this case. (Smith v. Robbins (2000)
528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123–124.)
DISPOSITION
The appeal is dismissed.
____________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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