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People v. Alexander

California Court of Appeals, Second District, Sixth Division
Sep 9, 2008
No. B206467 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

Super. Ct. No. YA067748, Charles F. Palmer, Judge

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.


YEGAN, Acting P.J.

Terry Fitzgerald Alexander appeals from the judgment following a nolo contendre plea to one criminal threat count (Pen. Code, § 422) and admission that he had suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)). The trial court denied a subsequent motion to withdraw the plea and, pursuant to the terms of the negotiated plea, sentenced appellant to four years state prison with 398 days presentence custody credit.

Unless otherwise stated, all statutory references are to the Penal Code.

The negotiated plea was based on preliminary hearing testimony that appellant assaulted and threatened his wife, Dani I. After Dani moved out, appellant stalked and threatened her at her home, work, and on the phone. Appellant also threatened Dani's mother and family members. Tires were slashed and garbage was thrown at the house,

On the morning of March 12, 2007, appellant threw a five pound weight through the family's living room window.

Appellant was charged with stalking (§ 646.9, subd. (a)) and four counts of making criminal threats (§ 422). The information alleged an out-on-bail enhancement (§ 12022.1), that appellant had suffered six prior serious or violent felony convictions (§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), and that appellant had served three prior prison terms within the meaning of section 667.5., subdivision (b).

Appellant was advised that the maximum sentence was 45 years to life if convicted on all counts. After several continuances, he entered into a negotiated plea in which he pled no contest to one criminal threat count and admitted a prior strike conviction in exchange for a four-year sentence. The remaining counts and allegations were dismissed or stricken.

We appointed counsel to represent appellant in this appeal. After counsel’s examination of the record, she filed an opening brief in which no issues were raised.

On August 13, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. On August 28, 2008, appellant submitted a letter brief requesting that the sentence be reduced to 32 months because his trial attorney said that he would receive a 16 month base term.

The record indicates that appellant attempted to negotiate a 16 month sentence which was rejected by the prosecution. After several continuances and two Marsden hearings (People v. Marsden (1970) 2 Cal.3d 118), appellant entered a negotiated no contest plea under People v. West (1970) 3 Cal.3d 595 to one criminal threat count and admitted a prior strike enhancement in exchange for a four year sentence. Appellant, however, claimed the prosecutor had "threatened me with 45 to life" and conferred with counsel and personally addressed the trial court. Appellant was repeatedly questioned about the negotiated plea and acknowledged that he was entering the change of plea freely and voluntarily.

At the Marsden hearings, appellant made no showing that his court appointed attorney was not providing adequate representation or that appellant and counsel were embroiled in an irreconcilable conflict. (People v. Hines (1997) 15 Cal.4th 997, 1025, 1026.)

The trial court, in denying a subsequent motion to withdraw the plea, found that appellant expressly, knowingly, understandingly, and intelligently waived his rights and understood the nature and consequences of the plea. The trial court reasonably concluded that a guilty plea is not involuntary where is it based on the defendant's desire to avoid a harsher sentence and the plea is accompanied by the defendant's protestations of innocence. (See North Carolina v. Alford (1970) 400 U.S. 25, 31-39 [27 L..Ed.2d 162, 167-172].)

We have reviewed the record and are satisfied that appellant's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106, 125-126.)

The judgment is affirmed.

We concur: COFFEE, J., PERREN, J.


Summaries of

People v. Alexander

California Court of Appeals, Second District, Sixth Division
Sep 9, 2008
No. B206467 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Alexander

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TERRY FITZGERALD ALEXANDER…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Sep 9, 2008

Citations

No. B206467 (Cal. Ct. App. Sep. 9, 2008)