California Court of Appeal Mar 12, 2014 No. D063882Unpublished
Filed 3/12/14 P. v. Magdaleno CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063882
Plaintiff and Respondent,
v. (Super. Ct. No. SCD229679)
MITCHELL MAGDALENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Robert Booher, under appointment by the Court of Appeal, for the Defendant and
Appellant.
No appearance for the Plaintiff and Respondent.
In April 2013, after his probation was revoked, Mitchell Magdaleno pleaded guilty
to unlawful sexual intercourse with a minor (Pen. Code,1 § 261.5; count 1) and oral
copulation of a minor (§ 288a, subd. (b)(2); count 2) in exchange for dismissal of
remaining charges and a maximum punishment of two years in state prison. Magdaleno
entered into the April 2013 plea so as to correct an error in an earlier guilty plea he had
entered into in January 2011 as well as an erroneous sentence imposed after his probation
revocation. The trial court sentenced Magdaleno to a two-year low term on count 1 and a
concurrent two-year midterm on count 2. It granted Magdaleno 430 days of actual and
local conduct credits and ordered him to pay various fees and fines. Magdaleno filed the
present appeal. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After the People charged Magdaleno with four counts of committing a lewd act on
a child 14 or 15 years of age (§ 288, subd. (c)(1)), he pleaded guilty in January 2011 to
one count of unlawful sexual intercourse with a minor (§ 261.5) and another count
identified incorrectly on the plea form as under section "288(a)(2)." The terms of
Magdaleno's plea bargain provided for a maximum punishment of two years in state
prison. In May 2011, Magdaleno was granted three years of probation for his
convictions, the second of which was correctly listed in the order as oral copulation of a
minor under section 288a, subdivision (b)(2). He was ordered to serve 210 days in
county jail with two days of credit.
1 Statutory references are to the Penal Code unless otherwise specified. 2
In February 2012, Magdaleno admitted violating his probation by failing to attend
sex offender treatment. The trial court, following a probation officer's recommendation,
reinstated probation.
In March 2013, Magdaleno admitted to seven additional probation violations. The
court revoked his probation and sentenced him to a three-year midterm on count 1 and a
concurrent two-year midterm on count 2.
On April 26, 2013, the People filed an amended complaint asserting two counts of
section 261.5 violations (counts 1 and 2) and one count of a violation of section 288a,
subdivision (b)(2) (count 3). Observing that Magdaleno was arraigned on an amended
complaint in January 2011 but there was no such complaint in the file, the trial court nunc
pro tunc deemed the amended complaint as filed on January 26, 2011. The court further
explained: "And for purposes of today's hearing, we now have a felony change of plea
form that is correct as to the charges that were in the amended complaint and is correct as
to what the negotiated disposition was as of the date of January 26, 2011."
Magdaleno then entered into a guilty plea to count 1 and count 3 of the amended
complaint, in exchange for dismissal of the balance of the charges and a two-year "lid."
The factual basis for his plea consisted of Magdaleno's sworn admission (as well as a
written statement initialed by Magdaleno), that he "had unlawful sexual intercourse when
21 years of age or older with a minor under 16 and including oral copulation of same
minor under 16." The court acknowledged that the sentence imposed in March 2013 was
invalid and corrected the felony abstract of judgment to impose a state prison sentence of
two years, consisting of the two-year low term on count 1 and a concurrent two-year
3
midterm on count 3. It ordered Magdaleno to pay a $200 restitution fine under section
1202.4, subdivision (b), a $200 parole revocation restitution fine under section 1202.45,
and an $80 court operations assessment under section 1465.8. The court awarded
Magdaleno 430 days of custody credits.
Magdaleno timely filed a notice appeal but did not obtain a certificate of probable
cause.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below.
Counsel presents no argument for reversal, but asks this court to review the record for
error as mandated by People v. Wende (1979) 25 Cal.3d 436. Under Anders v. California
(1967) 386 U.S. 738, counsel identifies one possible appellate issue: whether
Magdaleno's guilty plea was constitutionally valid. We granted Magdaleno permission to
file a supplemental brief on his own behalf, but he did not respond.
Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and
Anders v. California, supra, 386 U.S. 738, including the possible issues referred to
Magdaleno's appellate counsel, has revealed no reasonably arguable appellate issue.
Because Magdaleno did not obtain a certificate of probable cause, he cannot challenge
the validity of his guilty plea. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084,
1096-1097.) Magdaleno has been competently represented by counsel on this appeal.
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment after finding no reasonably arguable appellate issues following a Wende review, noting that the defendant's failure to obtain a certificate of probable cause precluded a challenge to the validity of his guilty plea.
Issues
Whether the defendant's guilty plea was constitutionally valid.
Whether there are any reasonably arguable appellate issues in the record.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because Magdaleno did not obtain a certificate of probable cause, he cannot challenge the validity of his guilty plea.”