Filed 4/7/15 P. v.Curiel CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO CURIEL,

Defendant and Appellant.

 B256127

 (Los Angeles County

 Super. Ct. No. BA415566)

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. 

Priver, Judge. Affirmed.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

___________________________
2

The People filed an information charging Fernando Curiel with possession of a 

firearm by a felon (Pen. Code, §29800, subd. (a)(1))1 and specially alleging he had served 

three separate prison terms for felonies (§ 667.5, subd. (b)). Represented by appointed 

counsel, Curiel pleaded not guilty and denied the prior prison term allegations. 

Following jury selection, Curiel entered an open plea of no contest and admitted 

the prior prison term allegations for an indicated sentence of two years. At the time he 

entered his plea, Curiel was advised of his constitutional rights and the nature and 

consequences of the plea, which he stated he understood. Appointed counsel joined in 

the waivers of Curiel’s constitutional rights. The trial court expressly found Curiel’s 

waivers and plea were voluntary, knowing and intelligent. 

The trial court scheduled a sentencing hearing and agreed to release Curiel on his 

own recognizance under the terms of a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 

1247, 1254, fn. 5). In accordance with that waiver, Curiel acknowledged he understood 

and agreed if he failed to appear for sentencing, he could be sentenced up to the 

maximum aggregate state prison term of six years (the three-year upper term for 

possession of a firearm by a felon plus one-year for each of the three prior prison term 

enhancements) and would not be permitted to withdraw his plea. 

On the day set for the sentencing hearing, Curiel appeared with retained counsel 

and moved to withdraw his plea on the ground he was coerced by appointed counsel to 

enter a plea (§ 1018). The trial court relieved the public defender’s office as counsel of 

record, heard and denied the motion, and continued the sentencing hearing. 

Curiel did not appear for sentencing, and the trial court ultimately sentenced him 

to the upper term of three years for possession of a firearm by a felon and struck the oneyear prior prison term enhancements (§ 1385). The court awarded Curiel presentence 

custody credit of 17 days and imposed statutory fees, fines and assessments. 

Curiel filed a notice of appeal in which he checked the preprinted box indicating 

his appeal was “based on the sentence or other matters occurring after the plea;” he also 

 

1 Statutory references are to this code. 
3

appears to claim to have been coerced by appointed counsel to enter a plea. Curiel did 

not obtain a certificate of probable cause. We appointed counsel to represent Curiel on 

appeal. 

After examination of the record counsel filed an opening brief in which no issues 

were raised. On December 24, 2014, we advised Curiel he had 30 days within which to 

submit any contentions or issues he wished us to consider. We have received no 

response.

A criminal defendant who appeals following a plea of no contest or guilty without 

a certificate of probable cause can only challenge the denial of a motion to suppress 

evidence or raise grounds arising after the entry of the plea that do not affect the plea’s 

validity. (Cal. Rules of Court, rule 8.304(b)(1).) To the extent Curiel is seeking to 

challenge the validity of his plea and his sentence imposed as part of his plea, his appeal 

is inoperative. With respect to other potential sentencing or post-plea issues that do not 

in substance challenge the validity of the plea itself, we have examined the record and are 

satisfied Curiel’s appellate attorney has fully complied with the responsibilities of 

counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 

[120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 112-113; 

People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed. 

ZELON, J. 

We concur:

PERLUSS, P. J. STROBEL, J.*

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.