People v. Neil CA2/4

Filed 5/23/16 P. v. Neil CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B266082

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA109348) v.

MITCHELL NEIL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ____________________________________

Defendant Mitchell Allen Neil was charged with one count of continuous sexual abuse (Pen. Code, § 288.5, subd. (a); count 1),1 and three counts of committing a lewd act upon a child (§ 288, subd. (a); counts 2, 3, 4). The victim in all four counts, S. Doe, was alleged to be a child under the age of 14 years who resided in the same house with defendant. Pursuant to a negotiated plea agreement, defendant pled no contest to count 2, and counts 1, 3, and 4 were dismissed. He received a stipulated sentence of eight years. Defendant filed a notice of appeal from the judgment. He did not obtain a 2 certificate of probable cause from the trial court. (§ 1237.5.) His counsel filed a Wende brief which raised no issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was provided with a copy of the record, and advised of his rights to submit a supplemental brief and seek new counsel. We have received no communication from him. In In re Chavez (2003) 30 Cal.4th 643, 646–647, the Supreme Court held that “[w]hen a defendant has pleaded guilty or no contest (nolo contendere) to a criminal charge, the defendant may not appeal the judgment of conviction on issues ‘going to the legality of the proceedings’ unless, within 60 days of rendition of the judgment, he or she files with the trial court a written statement executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds for appeal and, within 20 days after that filing, the trial court executes and files a certificate of probable cause for appeal. ([§ 1237.5]; Cal. Rules of Court, rule [8.304(b)].)” The failure to comply with section 1237.5 is a fatal defect. (Chavez, supra, 30 Cal.4th at p. 651; see People v. O’Daniel (1987) 194 Cal.App.3d 715, 718 [“Issues which merely go to the guilt or innocence of a defendant are removed from consideration by entry of a guilty