Opinion
D069778
01-04-2017
THE PEOPLE, Plaintiff and Respondent, v. KEITH STEWART, Defendant and Appellant.
Lynelle K. Hee for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD263071) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Lynelle K. Hee for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Keith Stewart appeals from a judgment following a guilty plea. Stewart's brief on appeal, filed by appointed appellate counsel, presents no argument for reversal in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende ). Stewart did not respond to separate invitations from appellate counsel and from this court to file a supplemental brief. After independently reviewing the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we find no reasonably arguable appellate issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In an amended complaint filed in August 2015, the district attorney charged Stewart with one count of felony petty theft (Pen. Code, § 484; further undesignated statutory references are to this code) with a qualifying prior (§ 666, subds. (a) & (b)). The amended complaint further alleged one probation denial prior (§ 1203, subd. (e)(4)), four prison priors (§§ 667.5, subd. (b), 668) and one strike prior (§§ 667, subds. (b)-(i), 1170.12).
Later that month, the court presided over a preliminary hearing and at the conclusion bound Stewart over for trial on the amended complaint.
At the end of September 2015, the trial court heard and ruled on in limine motions (including motions to suppress evidence) and had begun to empanel a jury, when Stewart suffered a medical emergency. Stewart was taken to the hospital, and the court adjourned the proceedings.
In October 2015, Stewart pleaded guilty to one count of felony petty theft with a prior and admitted the qualifying prior, four prison priors and one strike prior. The guilty plea form that Stewart signed included the representations (and Stewart's understanding) that the court would strike the prison priors and sentence him to 32 months in state prison.
In January 2016, the court sentenced Stewart to 32 months — based on the low term of 16 months, doubled pursuant to the one strike prior — and struck the additional punishment for the enhancement associated with the four prison priors under section 1385, subdivision (c)(1).
Stewart timely appealed from the judgment, and in early February 2016 the trial court denied Stewart's request for a certificate of probable cause.
DISCUSSION
Appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal in accordance with Wende, supra, 25 Cal.3d 436.
Pursuant to Anders, supra, 386 U.S. 738, counsel identified as possible but not arguable issues: (1) whether Stewart was properly advised of his constitutional rights and the consequences of pleading guilty; and, if so, whether he voluntarily waived them (citing Boykin v. Alabama (1969) 395 U.S. 238; Bunnell v. Superior Court (1975) 13 Cal.3d 592; In re Yurko (1974) 10 Cal.3d 857; In re Tahl (1969) 1 Cal.3d 122; In re Johnson (1965) 62 Cal.2d 325; §1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74 [certificate of probable cause required to attack validity of plea], 78 [certificate of probable cause required to attack a sentence imposed in accordance with the plea agreement]); and (2) whether the court erred in declining to dismiss the strike prior or to consider an alternative sentence as requested in a letter Stewart wrote and presented to the court at the time of sentencing.
Counsel invited Stewart to file a brief on his own behalf, and we granted Stewart permission to file a brief on his own behalf. Stewart has not responded.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, discloses no reasonably arguable appellate issues.
Stewart has been adequately represented by counsel in this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: MCCONNELL, P. J. NARES, J.