Opinion
F071038
06-30-2016
THE PEOPLE, Plaintiff and Respondent, v. JIMMY RAY PICKENS, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14901946)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles and Houry A. Sanderson, Judges. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Peña, J.
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INTRODUCTION
Pursuant to a plea agreement, appellant Jimmy Ray Pickens pled no contest to one count of violating Penal Code section 21310, admitted suffering five prior convictions within the meaning of section 667, subdivisions (b) through (i), and admitted having served five prior prison terms within the meaning of section 667.5, subdivision (b). In exchange for his plea, he would receive a sentence of 11 years, reached in part by striking four of the five prior strike offenses pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Pickens was sentenced in accordance with the plea agreement. Pickens appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
References to code sections are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
On February 12, 2014, Pickens was found to be in possession of three knives; two were folding knives and legal. The third, however, was an unsheathed fixed-blade knife, completely concealed, with a three-inch double-sided blade and a three and one-half inch handle. On February 27, 2014, Pickens was charged with a felony violation of section 21310, carrying a concealed dirk or dagger. It also was alleged Pickens had suffered five prior convictions within the meaning of section 667, subdivisions (b) through (i), and had served five prior prison terms within the meaning of section 667.5, subdivision (b).
The public defender was appointed to represent Pickens. On May 28, 2014, Pickens filed a motion for substitute counsel. He withdrew the motion at the June 9, 2014 hearing.
Thereafter, Pickens filed a motion seeking to act as his own counsel. The motion was granted on June 30, 2014. On August 27, 2014, Pickens asked for counsel to be appointed and the trial court immediately reappointed the public defender to represent Pickens.
On November 6, 2014, Pickens initialed and signed a felony advisement, waiver of rights, and plea form. Pursuant to the plea agreement, Pickens agreed to plead no contest to the felony offense and admit the five prior strike convictions and the five prior prison terms. As part of the plea agreement, the trial court would exercise its discretion under Romero and strike four of the five prior convictions; the stipulated term of imprisonment would be 11 years.
At the November 6, 2014, change of plea hearing, the trial court verified Pickens had initialed and signed the change of plea form and had sufficient time to discuss the matter with his counsel. Pickens was asked by the trial court if he had any questions about the form, to which he responded in the negative. The trial court proceeded to go through the waiver of rights with Pickens and explain the consequences of his plea. The trial court noted Pickens was pleading to a stipulated 11-year sentence.
The trial court proceeded to accept Pickens' plea and his admissions. The trial court found Pickens had freely and voluntarily entered into the plea. It also found Pickens "intelligently, knowingly, expressly and understandingly waived his constitutional rights."
Sentencing occurred on January 8, 2015. Prior to imposing sentence, the trial court verified Pickens was not seeking to substitute counsel, represent himself, or withdraw his plea. Defense counsel asked the trial court to reduce the section 21310 offense to a misdemeanor; the trial court denied the request. Defense counsel then asked the trial court to exercise its discretion under Romero and strike all the prior convictions; this request was denied as well. The trial court struck four of the five prior convictions, as had been agreed.
The trial court imposed the upper term of three years for the section 21310 offense "given the lengthy criminal history" and doubled that to six years for "one strike," plus one year for each of the five prison prior enhancements, for a total term of 11 years in prison, in accordance with the plea agreement. Various mandatory fines and fees were imposed. The abstract of judgment accurately reflects the trial court's oral pronouncement.
Pickens filed a notice of appeal on February 20, 2015, and requested a certificate of probable cause. The trial court denied the request for a certificate of probable cause. Appellate counsel was appointed on March 23, 2015.
DISCUSSION
On July 20, 2015, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. That same day, this court issued its letter to Pickens inviting him to submit supplemental briefing. No supplemental brief was submitted.
In his request for a certificate of probable cause, Pickens claims he was targeted for prosecution because he has tattoos; his Fourth Amendment rights were violated; and his attorney "did not do her job." There is virtually nothing in the record to support Pickens' claim that he was targeted because of his tattoos.
Furthermore, prior to entering his plea, Pickens affirmatively stated he had had enough time to go over the plea agreement with his counsel. Pickens verified he understood by entering the plea, he was giving up the right to a trial and to confront witnesses against him. Pickens had ample opportunity to raise any concerns he had about the evidence or to exercise his right to a trial.
As for defense counsel, she managed to negotiate a plea agreement on behalf of her client providing for a stipulated maximum term of 11 years, rather than the 25-year-to-life sentence the People were seeking.
Pickens appears to be suffering from "buyer's remorse." Buyer's remorse regarding a plea agreement does not constitute good cause to set aside a plea. (People v. Simmons (2015) 233 Cal.App.4th 1458, 1466.)
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.