Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. PA052539, Shari K. Silver, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
Erby Barrera appeals his conviction for second degree robbery. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief and has not done so.
The second amended information charged appellant with one count of second degree robbery, plus personal use of a handgun. (Pen. Code, §§ 211, 12022.53, subd. (b).) It also alleged that appellant had five prior convictions pursuant to section 667.5, subdivision (b), two prior convictions pursuant to section 667, subdivision (a)(1), and two prior strike convictions.
Subsequent code citations are to the Penal Code unless otherwise stated.
The evidence at the preliminary hearing showed that appellant displayed a weapon when he committed a robbery at a 7-Eleven store.
Appellant had private counsel for the preliminary hearing. The public defender was thereafter appointed for him.
On June 20, 2006, appellant rejected a plea offer of 26 years in prison, even though he faced the possibility of 45 years to life in prison. That same day, he unsuccessfully moved to substitute counsel.
On June 22, 2006, counsel asked the court to dismiss on its own motion at least one of the strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On August 14, 2006, the court granted appellant’s request to proceed in propria persona.
On September 14, 2006, appellant filed a motion to strike his prior felony convictions.
On December 15, 2006, appellant filed a motion for appointment of a psychologist. The motion was denied, but a motion for additional in propria persona funds was granted. A bar-panel attorney was appointed as standby counsel.
On January 12, 2007, appellant filed a Romero motion, a motion to dismiss pursuant to section 995, and a request for continuance.
On January 25, 2007, the People filed a document that listed factors in aggravation. Appellant’s Romero motion and section 995 motion were denied. The matter was trailed to allow appellant more time to consider the People’s settlement offer. He rejected it on January 26, 2007.
At proceedings on February 2, 2007, the court observed that appellant looked ill, was coughing a lot, and had very red eyes. The case was trailed so that he could receive medical treatment at the jail.
On February 13, 2007, with standby counsel in the courtroom, appellant accepted a new plea agreement. It was for a total sentence of 15 years in prison based on the low term of two years, doubled for one strike, plus 10 years for the gun and one year for a prison prior conviction pursuant to section 667.5, subdivision (b).
Before pleading guilty, appellant said he understood and wished to accept the agreement. The court told him he could ask a question at any time if he did not understand something. The prosecutor gave him a complete advisement of the constitutional rights being waived and the consequences of the plea. Appellant said he understood and wanted to give up his rights. He further indicated that no threats had been made, and he was pleading guilty voluntarily because he believed that was in his best interest.
Before accepting the plea, the court inquired about appellant’s health. It recalled signing a medical order when appellant came to court very ill on February 2. A report from the medical unit of the sheriff’s department indicated that appellant had been treated and probably given antibiotics. Appellant said that was correct. The court asked him if he was feeling “well enough today to enter into this disposition?” He answered, “Yes.” The court continued, “You seem a lot better. Are you better?” He answered, “Yes.” The court accepted the plea, finding that it was made freely, voluntarily, and with full understanding of the consequences.
On June 15, 2007, while sentencing was pending, appellant filed a motion to withdraw the plea. The People strongly objected. At appellant’s request, his in propria persona status was revoked, and the public defender was appointed again to represent him.
On July 13, 2007, appellant’s deputy public defender filed a motion to withdraw the plea. In the courtroom that day, the court read aloud the grounds of the motion: “[Number 1,] that the Los Angeles Police Department forced defendant to fire his private attorney with a promise of leniency if the defendant gave information in a homicide case in Van Nuys, which he did. [¶] Number 2, defendant does not remember the plea deal being proffered as reflected in the plea transcript of February 13th, ’07. [¶] And, number 3, defendant was not fully aware of his actions in pleading guilty because he was taking prescription medications.” The court observed that the prosecutor had worked hard to obtain her office’s consent to an agreement for a shorter prison sentence. It recalled that it continued the case when appellant came to court ill and had asked appellant at the plea proceedings if he was feeling better and was ready to proceed.
Appellant then was sworn as a witness on the motion. He said he wanted to withdraw the plea because, although he did not remember everything that happened that day, parts of the transcript showed an agreement that was “not the agreement that we agreed upon.” He indicated that he thought the agreement included 10 years due to two five-year priors and not 10 years due to the gun enhancement. Also, because of the medication, he did not recall most of what was said at the plea proceedings. That medication consisted of Benadryl, cough syrup, antibiotics, and Tylenol. He also felt he had been pushed by detectives of the district attorney’s office to fire the private attorney he had obtained before the public defender’s office was appointed for him. He realized, however, that he had negotiated with the prosecutor for the 15-year offer he accepted, and he had been advised by the court, his deputy public defender, and the prosecutor that it was a bad idea to represent himself. He denied that he told the prosecutor it did not matter whether 10 years of his sentence was based on one gun enhancement or two five-year enhancements for prior convictions. He admitted that, on the day of the plea, he “felt [he] was okay” because of the medication.
Before ruling, the court orally summarized all the prior proceedings including appellant’s statement that he felt well enough to proceed with the plea. It found that there was no basis for a finding that the medication affected the plea, it did not believe that appellant did not remember the plea, and appellant “understood absolutely everything that was going on” when he entered it. It further found no credible evidence that appellant was forced to fire his private attorney. It denied the motion to withdraw the plea and immediately sentenced appellant pursuant to the plea bargain. It subsequently denied a request for a certificate of probable cause. This appeal followed.
The guilty plea and lack of a certificate of probable cause limit the potential scope of this appeal to “[g]rounds that arose after entry of the plea [that] do not affect the plea’s validity” and/or “[t]he denial of a motion to suppress evidence under Penal Code section 1538.5.” (Cal. Rules of Court, rule 8.304(b)(4); see § 1237.5; People v. Shelton (2006) 37 Cal.4th 759, 769.)
From our review of the record, we are satisfied that appellant’s counsel has fully complied with his responsibilities and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; People v. Kelly (2006) 40 Cal.4th 106, 123-124; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J. RUBIN, J.