Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC061118A
Margulies, J.
Vernard Bailey appeals from a judgment following a plea of no contest and imposition of sentence. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he could file a supplemental brief raising any issues he wishes to call to this court’s attention. We have not received any supplemental brief. We have independently reviewed the record and conclude that no arguable issues are presented for review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from a no contest plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the preliminary hearing transcript.
On April 21, 2006, defendant arrived at the home of Gloria Nunn. Defendant and Nunn had been in a two-month “relationship,” which had ended the previous week. Nunn’s son, Eli Campbell, went outside and asked defendant for “the house keys or any other keys that belonged” to Nunn. Campbell informed defendant that his mother did not want to talk him. Defendant who was in his car exited the vehicle and hit Campbell on the head and shoulder with a crowbar. A fight ensued between them as each wrestled for the crowbar, after which defendant told Campbell that “it wasn’t over,” he was “going to get somebody to kill” Campbell in 10 minutes, and would return. Defendant subsequently returned in his car. Campbell and Nunn were standing outside with two other family members. According to Campbell, defendant “slammed on the gas” and drove his vehicle towards the group causing them to move out of the way. The car hit Nunn’s blue car, ricocheted off, and hit the neighbor’s house. Defendant tried to hit Campbell and the others a second time, but instead ran into a car belonging to Campbell’s uncle.
The San Mateo County District Attorney filed an information on May 19, 2006 charging defendant with one count of attempted murder with use of a deadly or dangerous weapon (Pen. Code, §§ 666/187, subd. (a), 12022, subd. (b); count 1); two counts of assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1); counts 2 and 5); one count of threatening to commit a crime (§ 422; count 3); two counts of vandalism causing damage of $400 or more (§ 594, subd. (b)(1); count 4 and 7); and one count of unlawful driving or taking a vehicle (§ 10851, subd. (a); count 6). The information further alleged that defendant suffered three prior prison convictions. (§ 667.5, subd. (b).)
All statutory references are to the Penal Code, unless otherwise noted.
On May 25, 2007, defendant’s attorney, Alexandria Carl, moved to be relieved as counsel and for a continuance. Carl informed the court that she had a conflict of interest because defendant had filed a complaint against her with the State Bar, and she had been advised by the Bar that she needed to do a motion to be relieved as counsel due to the conflict. Believing that defendant was attempting to manipulate the court by changing attorneys multiple times to avoid trial, the court denied the request for a continuance. However, on May 29, 2007, the court granted defense counsel’s request for a continuance. Defendant subsequently filed a Marsden motion for substitution of counsel. Defendant appeared in court without his attorney on June 27, 2007, and his motion for substitution of counsel was rescheduled for July 2, 2007.
The court did not rule on defense counsel’s motion to be relieved as counsel at the May 25th hearing.
People v. Marsden (1970) 2 Cal.3d 118.
The prosecutor advised the court that because Alexandria Carl was not “a private defender,” a Marsden motion was not appropriate.
On July 2, 2007, the date set for trial, Department 11 referred the “issue of counsel” to Department 8 for a hearing. In Department 8, however, defendant informed the court that he no longer wanted to replace his attorney and was willing to have her continue to represent him.
The matter was returned to Department 11, wherein pursuant to a negotiated disposition defendant pleaded no contest to count five, assault with a deadly weapon, and admitted that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(23). Defendant also admitted one of the prison priors. Defendant signed and initialed a change of plea form, and his attorney stipulated there was a factual basis for the plea based on the preliminary hearing transcript and the police reports. The court dismissed the remaining counts with defendant’s agreement that the dismissed counts could be considered by the court in setting restitution. Defendant waived referral to the probation department.
In return for his no contest plea and admissions, defendant was sentenced to a stipulated term of five years. The court imposed the aggravated term of four years on the assault with a deadly weapon charge and added a one-year enhancement for the prior prison term. Defendant was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a corresponding suspended parole revocation restitution fine (§ 1202.45), and a $20 security fee (§ 1465.8). The court also ordered victim restitution in an amount to be determined by the probation department (§ 1202.4, subd. (f)). Defendant received custody credits of 656 days.
Defendant filed a timely appeal challenging the validity of the plea and the sentence. Defendant’s application for a certificate of probable cause was granted.
DISCUSSION
“[S]ection 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 766.) Attached to defendant’s notice of appeal filed in San Mateo County Superior Court on August 3, 2007, is a request for a certificate of probable cause. The certificate of probable cause was granted, so defendant is entitled to obtain review of the validity of the plea in this appeal.
Our review of the record, and particularly the transcript of the negotiated plea and signed plea form, leads us to conclude that defendant was thoroughly and accurately advised by the court and his counsel of the constitutional rights he would be waiving and the direct consequences of his plea. Defendant expressly waived his constitutional rights and knowingly and voluntarily pleaded no contest. We find nothing in the record to indicate that defendant lacked competence or understanding to enter the plea.
We find no meritorious sentencing errors that would require reversal of the judgment. As agreed, defendant was sentenced to five years in state prison consisting of the aggravated term of four years for violation of section 245, subdivision (a) and a consecutive one year for the prior prison enhancement. The restitution fines imposed were also appropriate, and defendant was informed by the court that he could return to contest the amount of victim restitution determined by the probation department.
Defendant was represented by counsel throughout the proceedings. We find no support in the record on appeal of ineffective assistance of counsel.
We agree with appellate counsel that there are no issues warranting further briefing.
The judgment is affirmed.
We concur: Marchiano, P.J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.