Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. PA052033, Harvey Giss, Judge.
David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, J.
Troy D. Smith appeals from a judgment entered following a jury trial in which he was convicted in count 1 of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with the finding that he personally used a firearm within the meaning of Penal Code section 12022.5 and in count 3 of discharging a firearm with gross negligence (Pen. Code, § 246.3). He admitted that he suffered two prior convictions of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)) and two prior serious felonies within the meaning of Penal Code section 667, subdivision (a)(1).
Pursuant to Penal Code section 1118.1, the court dismissed count 2, making criminal threats (Pen. Code, § 422).
On October 17, 2006, new counsel substituted in for purposes of making a motion for new trial and sentencing.
On March 23, 2007, the parties indicated they had entered into a postconviction disposition wherein appellant would be sentenced to prison for 17 years and that appellant “absolutely understands that there will be no appeal.” Appellant signed and initialed a five-page document entitled “‘Troy David Smith’s Declaration of Factual Basis Under Penalty of Perjury and Complete Appellate Waiver.’” In court, appellant indicated he had read the document with his counsel present, that he had no questions, and that he fully understood the document. Appellant stated he understood the document served “to waive every right [he and his counsel] could figure out that would enable [appellant] to return to this court and relitigate this case[.]” Appellant stated he was “willing to do that, give up all rights and end this litigation for all purposes at this time.” Appellant stated he understood that the document “goes on to state a factual basis . . . what occurred on May the 23rd, 2005, what [his] involvement is, what [appellant] did, and what [his] motives were for doing them.” On that same date the document was filed in superior court.
The document states, in pertinent part, that sentence was pending and that a motion for new trial based primarily on incompetence of trial counsel had been noticed. Appellant acknowledged he was facing a sentence of 25 years to life pursuant to the Three Strikes law and his maximum prison sentence or exposure was 70 years to life, consisting of 25 years to life for count 1, plus 25 to life for count 2, plus 10 years for the gun use enhancement, plus 10 years for the two prior convictions admitted pursuant to Penal Code section 667, subdivision (a). The court, counsel and appellant agreed that in exchange for a factual basis admission/confession, for withdrawing the motion for a new trial, and for waiver of any and all appellate rights and/or a complete waiver of any and all rights to contest the sentence, appellant would be sentenced to 17 years as a determinate term. Appellant acknowledged that he had had sufficient time to discuss with his attorney the proposed post-conviction agreement, as well as any and all possible appellate and writ rights, and did not need additional time with his attorney before entering in this negotiated disposition. Appellant declared all of his questions and concerns had been addressed by his attorney and the court. Appellant waived his right to appeal and challenge his conviction, sentence and negotiated disposition. He agreed to permanently end all litigation of any claims.
In exchange for this waiver, appellant was sentenced to 17 years in prison, consisting of the upper term of four years for count 1, doubled by reason of one prior strike, plus four years for the firearm enhancement and an additional five years for one prior serious felony enhancement. The court sentenced appellant in count 3 to two years, stayed pursuant to Penal Code section 654, struck the remaining prior strike and granted a mistrial on the remaining five-year prison prior.
Pursuant to appellant’s declaration of factual basis, on May 23, 2005, appellant attempted to serve an eviction notice on Kittrel Beaty and became engaged in a heated verbal argument. Appellant walked back to his house and immediately returned, brandishing a firearm, to confront Mr. Beaty. When Mr. Beaty turned his back, appellant discharged the gun, firing a projectile into the ground. Mr. Beaty walked towards his house and appellant approached from behind and pointed a handgun at Mr. Beaty’s head.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On October 4, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. On November 29, 2007, he filed a supplemental brief, claiming his convictions were based on hearsay evidence and therefore not supported by substantial evidence, the trial court committed judicial misconduct, appellant’s sentence was unauthorized, the court improperly participated in plea negotiations and appellant received ineffective assistance of trial counsel.
We have examined the entire record and are satisfied that no arguable issues exist. Appellant voluntarily and intelligently waived his appellate rights relative to his convictions and sentence. (See People v. Panizzon (1996) 13 Cal.4th 68, 83; People v. Nguyen (1993) 13 Cal.App.4th 114; People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.) Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.