Unreported / Non-Citable
Background
Peter Cruz was charged in Fresno County in an amended information with three counts of lewd or lascivious acts on a child under 14 years of age and one count of oral copulation or sexual penetration with a child under 10 years of age, involving three separate victims. The amended information also alleged One Strike law aggravating circumstances as to counts 1, 2 and 4 and two aggravating sentencing factors under California Rules of Court, rule 4.421. Shortly after opening arguments at his jury trial, Cruz pleaded no contest to counts 1 and 2 and admitted the aggravating sentencing factors alleged under rule 4.421(a)(1) and (a)(3). In exchange, the prosecution dismissed the remaining counts and the One Strike allegations, and the parties stipulated to a 10-year aggregate sentence. The parties also agreed that Cruz could remain out of custody pending sentencing if he reported to probation and submitted to GPS monitoring.
At the sentencing hearing, the trial court imposed the stipulated 10-year sentence as an eight-year upper term on count 1 and a consecutive two-year term on count 2, calculated as one-third of the six-year middle term. The court awarded 90 days of custody credits and imposed a $3,000 restitution fine under Penal Code section 1202.4. It also imposed and suspended a $3,000 parole revocation fine under section 1202.45 and a $300 fine under section 290.3, and imposed ancillary assessments of $80 under Penal Code section 1465.8, subdivision (a)(1), and $60 under Government Code section 70737, subdivision (a)(1). Cruz filed a notice of appeal but did not seek a certificate of probable cause under section 1237.5. Direct victim restitution was reserved, later awarded, and challenged in a separate appeal, People v. Cruz, F090649.
The Court’s Holding
Appellate counsel filed a brief under People v. Wende that raised no arguable issues and instead asked the Court of Appeal to review the entire record independently. After receiving the Wende brief, the court notified Cruz of his right to file a brief identifying any grounds he wanted considered, but he did not file one. The court then explained that an appeal from a guilty or no-contest plea generally requires a written statement showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings and a certificate of probable cause from the trial court. Because a certificate was required but not sought, issues concerning the validity of Cruz’s plea were not cognizable. Citing People v. Panizzon, the court also recognized that a challenge to a sentence accepted as part of a plea can, in substance, attack the validity of the plea.
Without a certificate of probable cause, the court’s review was limited under California Rules of Court, rule 8.304(b)(3), to issues that did not require one. The court nevertheless examined the entire record and found no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Cruz. It therefore affirmed the judgment. The opinion expressly left the separate victim-restitution challenge, pending in People v. Cruz, F090649, outside this disposition.
Key Takeaways
- A defendant appealing from a no-contest plea generally must comply with Penal Code section 1237.5 and obtain a certificate of probable cause before challenging the validity of the plea or the plea-based sentence.
- The Court of Appeal followed People v. Wende by having appointed counsel file a no-issues brief and then independently examining the entire record.
- Cruz received notice of his right to file a supplemental brief identifying grounds for appeal, but he did not file one.
- Because no certificate of probable cause was sought, plea-validity issues were not cognizable, and review was limited to issues not requiring a certificate under rule 8.304(b)(3).
- After record review, the court found no ineffective assistance of counsel or other arguable error and affirmed the stipulated 10-year judgment; the separate restitution appeal in F090649 was not decided.
Why It Matters
The decision applies the established Wende procedure in a plea-based criminal appeal while enforcing the certificate-of-probable-cause limitation. It distinguishes the appellate court’s independent obligation to examine the record from its restricted authority to entertain attacks on the plea or the agreed sentence when no certificate was obtained.
The affirmance leaves the stipulated judgment intact and does not resolve Cruz’s separate challenge to the victim-restitution order in People v. Cruz, F090649. Because the opinion is not certified for publication, it remains subject to California Rules of Court, rule 8.1115’s restrictions on citation and reliance.