Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Phillip M. Morris and Jon D. Ferguson, Judges, Super.Ct.No. FVA701031
Retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant took personal property from the victim by means of force and fear. A felony complaint was thereafter filed, charging defendant with one count of robbery (Pen. Code, § 211) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The complaint further alleged that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All future statutory references are to the Penal Code unless otherwise stated.
Before the preliminary hearing, defendant, represented by counsel, pled guilty to the robbery allegation and admitted the prior strike conviction. In exchange, the gang enhancement allegation was to be dismissed, and defendant was promised a stipulated prison term of 10 years in state prison, to run concurrent with any parole violation. Defendant was immediately sentenced in accordance with the plea agreement with credit for time served.
Via a letter to the court, defendant subsequently sought to withdraw his guilty plea. The matter was initially placed on calendar but was later taken off, as defendant had already been sentenced.
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
Defendant’s request for a certificate of probable cause was denied.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his one-page supplemental letter brief, defendant essentially claims that he pled guilty due to pressure and duress from his trial counsel and that he wanted to go to trial.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We reject defendant’s claim that he pled guilty merely because of pressure or duress by his trial counsel. (See In re Resendiz (2001) 25 Cal.4th 230, 239) A defendant’s “assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’” (Id. at p. 253.) Here, defendant has failed to corroborate his bare assertion with independent, objective evidence demonstrating a likelihood he would have insisted on going to trial. The record is clear that defendant pled guilty to avoid a greater sentence.
In addition, the record shows defendant was adequately advised of the rights being waived and the consequences of pleading guilty. The plea agreement reflects defendant had sufficient time to consult with his attorney concerning the case. Additionally, in open court, defendant admitted that he understood all of his rights, that he was aware of the consequences of pleading guilty, that he had sufficient time to consult his attorney, that his attorney had explained everything on the plea form to him, and that he had sufficient time to consider the meaning of each statement in the plea form. In fact, the record shows that defendant had no questions or hesitations during the taking of the plea. Moreover, defendant’s waiver of his right to appeal and his failure to obtain a certificate of probable cause forecloses this contention. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Panizzon (1996) 13 Cal.4th 68, 86.)
Further, the parties stipulated that the police reports, defendant’s criminal history, and the laboratory reports established a factual basis for the plea, satisfying that legal requirement. (See People v. Holmes (2004) 32 Cal.4th 432, 443-444.) In addition, since defendant stipulated to the upper-term sentence, imposition of the upper term did not violate his constitutional rights. (Cunningham v. California (2007) ___ U.S. ___, ___ [127 S.Ct. 856, 868, 166 L.Ed.2d 856].) By entering into a plea agreement, a defendant effectively stipulates to a factual basis for the imposition of the maximum term within the plea agreement. (People v. Shelton (2006) 37 Cal.4th 759, 768.) Finally, defendant’s purported motion to withdraw his guilty plea was properly taken off calendar, as defendant had been sentenced and failed to file a writ petition. (People v. Chaklader (1994) 24 Cal.App.4th 407, 409.)
We have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.