Opinion
D072917
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. CLYDE L. ANDERSON, Defendant and Appellant.
Clyde L. Anderson, in pro. per.; Law Offices of Kent D. Young and Kent D. Young, under appointment by the Court of Appeal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN353491) APPEAL from a judgment of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed. Clyde L. Anderson, in pro. per.; Law Offices of Kent D. Young and Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Clyde L. Anderson pleaded guilty to a single charge of robbery and admitted a strike prior and a prison prior. (Pen. Code, § 211.) The trial court sentenced Anderson to state prison for a determinate term of 11 years.
All subsequent statutory references are to the Penal Code. --------
Anderson appeals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) and has not raised any specific issues. Anderson's counsel asks this court to review the record independently for error as required by Wende. We granted Anderson the opportunity to file a supplemental brief on his own behalf and he has done so. We have independently reviewed the record under Wende and found no reasonably arguable issues for reversal on appeal. We therefore affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
In December 2015, Anderson entered a jewelry store, asked to look at some diamond earrings, and ran out with a display rack holding $53,000 in jewelry. Anderson left his cell phone on the counter, which allowed the police to quickly locate and arrest him.
The People filed a complaint charging Anderson with a single count of robbery (§ 211) and alleging a prior strike conviction (§§ 667, 1170.12), and three prison priors (§ 667.5, subd. (b)). Before the preliminary hearing, Anderson entered into a plea agreement with the prosecution in which Anderson pleaded guilty to the robbery charge and admitted the prior strike conviction and one prison prior in exchange for a stipulated sentence of seven years in prison. After ensuring that Anderson was entering his plea knowingly, intelligently, and voluntarily, the court released Anderson on his own recognizance pending sentencing.
The agreement included a "Cruz waiver," pursuant to People v. Cruz (1988) 44 Cal.3d 1247, under which Anderson agreed that if he committed another crime or failed to appear at his sentencing hearing, "the sentence portion of this agreement will be cancelled. I will be sentenced unconditionally, and I will not be allowed to withdraw my guilty . . . plea." Accordingly, the court informed Anderson that if he committed any crimes while released or failed to appear at the sentencing hearing, then the stipulated sentence would be withdrawn and the sentencing court would have discretion to sentence Anderson to the maximum possible prison term of 11 years. Anderson acknowledged that he understood.
Anderson failed to appear for sentencing. He was later arrested in Northern California, where he was charged with resisting arrest, providing false identification, and illegal possession of a firearm by a felon. When he was returned to San Diego for sentencing, Anderson asked to be relieved of his current counsel so he could retain new counsel to file a motion to withdraw his guilty plea. In his motion, Anderson argued that he was pressured into pleading guilty because his attorney told him he would never receive a fair trial given his race. The trial court denied the motion, finding Anderson's attorney's denial of the allegations to be credible and Anderson's averments to the contrary to not be credible.
At the sentencing hearing, the court found that the stipulated sentence no longer applied due to Anderson's failure to appear and subsequent arrest while released pending sentencing. The court imposed a total prison term of 11 years, consisting of the upper term of five years—doubled due to Anderson's strike prior—plus one year for Anderson's prison prior.
DISCUSSION
As noted, Anderson's appointed counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and has not raised any specific issues on appeal. Instead, he identified three possible, but not arguable, issues under Anders: (1) "whether Mr. Anderson's admission of the strike prior and prison prior comported with In re Yurko (1974) 10 Cal.3d 857"; (2) "whether the trial court erred in denying Mr. Anderson's motion to withdraw his guilty plea"; and (3) "whether the trial court erred in sentencing Mr. Anderson to eleven years' imprisonment." (Some capitalization omitted.)
After this court received counsel's brief, we provided Anderson with the opportunity to file a supplemental brief. Anderson filed a brief, in which he claims the trial court erred in denying his motion to withdraw his guilty plea because his attorney pressured him into accepting the plea offer.
We have independently reviewed the record under Wende and considered the possible issues identified by Anderson's counsel. We have found no reasonably arguable issues for reversal. Competent counsel has represented Anderson in this appeal.
The issue raised by Anderson concerning his motion to withdraw his guilty plea does not establish a basis for reversal. In ruling on a motion to withdraw a plea, the trial court may consider the defendant's credibility and we will defer to the trial court's credibility determination if supported by substantial evidence. (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) We also defer to the trial court's ultimate ruling, which is reviewed for an abuse of discretion. (Ibid.) Here, the trial court found that the statements made by Anderson and his girlfriend were not credible and found Anderson's attorney's explanation to be credible. The trial court did not abuse its discretion in denying the motion to withdraw the guilty plea based on its finding that Anderson was not misadvised by his attorney.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.