Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 061186-3
Richman, J.
Counsel appointed for defendant Matthew Miceli has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.
Our examination reveals that on July 4, 2004, defendant burglarized three homes in Walnut Creek. He entered one of the homes at approximately 4:00 a.m., activating the house alarm. One of the residents heard the alarm and assumed it was his sister who was visiting from out of town. After getting out of bed, he was walking into the living room when he heard a stool fall over in the kitchen. He continued down the hallway and suddenly encountered defendant, who was standing near the interior garage door. Defendant fled through the garage, got into his car, and drove away. After calling the police, the resident discovered that his checkbook and cell phone were missing from his car in the garage, while his roommate’s wallet was missing from the kitchen counter and his cell phone missing from his car.
Because defendant entered into a negotiated plea agreement prior to trial, we derive the factual background from the probation report and the preliminary hearing transcript.
Approximately 30 minutes later, defendant entered a second home through the garage and stole electronic equipment. As he did so, he knocked down a shelf, waking one of the residents. Thinking the noise had been made by one of her children, she went back to sleep, only to be awakened again when she heard the garage door open. This time, she got up to investigate and found that her living room had been ransacked. She then called the police.
At 5:50 a.m. that same morning, a resident in the same general neighborhood informed the Walnut Creek police that someone had run through his backyard as well as those of his neighbors. As the police were investigating, a nearby burglar alarm was activated. Learning that a suspect—later identified as defendant—had been seen running from another address, the police set up a perimeter, taking defendant into custody a short time later.
At some point between 2:30 a.m. that morning and the time of his arrest, defendant had also burglarized a third residence, stealing a wallet from a backpack left on a chair near the kitchen.
A search of defendant’s car and the vicinity where he was apprehended turned up numerous items stolen from two of the three residences. Defendant was positively identified by one of the victims as the person in his home that morning.
By information filed October 4, 2006, defendant was charged with three counts of first degree residential burglary in violation of Penal Code sections 459 and 460, subdivision (a). The information alleged that as to count one, the burglary was committed while a non-participant was present at the residence, rendering the offense a violent felony within the meaning of section 667.5, subdivision (c)(21). The information also alleged two prior serious felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, making this a “three strikes” case; a prior prison term within the meaning of section 667.5, subdivision (b); and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), stemming from a 2001 conviction for two counts of first degree burglary. Defendant entered a plea of not guilty on October 5, 2006.
All subsequent statutory references are to the Penal Code.
On March 1, 2007, the court considered a Marsden motion filed by defendant. The court initially denied the motion but, upon further consideration, granted it on March 13, 2007. Defendant was then assigned new counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On August 22, 2007, the information was amended to allege that, similar to count one, the burglaries in counts two and three were violent felonies because they were committed while a non-participant was present in the residence. It was also alleged that defendant had a prior violent prison conviction pursuant to section 667.5, subdivision (a) and a prior California serious felony conviction pursuant to section 667, subdivision (a)(1), both based on a 1998 Iowa conviction for second degree burglary. Finally, it was also alleged that the Iowa conviction was an additional strike for sentencing purposes pursuant to sections 667, subdivisions (b) through (i) and 1170.12.
That same day, pursuant to a negotiated plea agreement, defendant pleaded no contest to all three counts, and admitted a prior strike and the two section 667, subdivision (a)(1) enhancements. In exchange, the district attorney agreed to dismiss all remaining enhancements.
On September 28, 2007, the date of defendant’s sentencing hearing, the court considered another Marsden motion, as well as a motion by defendant to withdraw his plea of no contest. This time, the court denied the Marsden motion, finding it untimely and lacking in merit. The court also denied the motion to withdraw the plea, finding that there was no mistake, ignorance, or inadvertence on defendant’s behalf and that he entered into the agreement willingly and with a full understanding of the terms.
On September 28, 2007, defendant was sentenced to 19 years, 4 months in state prison, comprised of four years on count one (double the two-year midterm); two years, eight months on both counts two and three (one-third the four-year midterm, doubled); and five years for each of the section 667, subdivision (a)(1) enhancements.
This timely appeal followed.
DISCUSSION
The scope of reviewable issues on appeal after a guilty plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
“When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]” (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496; see also People v. Sandoval (2006) 140 Cal.App.4th 111, 123; People v. Holmes (2004) 32 Cal.4th 432, 442-443.) In the present case, the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea on the day of sentencing. The record supports the court’s findings that defendant did not enter into the plea agreement through mistake, ignorance, or inadvertence, and that defendant entered into the agreement willingly and with full understanding of the terms. Defendant’s change of plea thus complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
Defendant was also represented by competent counsel who zealously guarded his rights and interests. When the court was concerned that defendant was not receiving competent representation, it granted his Marsden motion. When defendant once again sought new counsel, this time on the date of his sentencing hearing, the court conducted a thorough examination, reviewing defendant’s 85-page motion, listening to his argument, and seeking explanations from counsel. Based on the record, we conclude the trial court did not abuse its discretion in determining that the motion was untimely and that counsel was providing competent representation. (See People v. Jones (2003) 29 Cal.4th 1229, 1245 [“We review a trial court’s decision declining to relieve appointed counsel under the deferential abuse of discretion standard”].)
It appears from the record that defendant filed another Marsden motion at some other point during the proceedings, which motion was apparently denied. It is unclear when that motion was made and who represented him at the time. However, it is irrelevant for our purposes, since defendant was represented by competent counsel at the time he changed his plea.
The sentence imposed is authorized by law.
Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.
We concur: Kline, P.J., Haerle, J.