Opinion
F072582
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. EDDIE ROOSEVELT BENTON, Defendant and Appellant.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRM034984)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge. Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Kane, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Appellant Eddie Roosevelt Benton pled no contest to making criminal threats (count 1/Pen. Code, § 422) and admitted a serious felony enhancement (§ 667, subd. (a)), two prior prison term enhancements (§ 667.5, subd. (b)), and allegations that he had a prior conviction within the meaning of the Three Strikes Law (§ 667, subds. (b)-(i)).
Unless otherwise indicated, all further statutory references are to the Penal Code. --------
Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 15, 2014, Benton and his wife A.B. went to a park and drank alcoholic beverages. At around 8:00 p.m., on their way home they got into an argument that continued after they arrived there. When A.B. went to the restroom, Benton walked up behind her with a gun. Benton told A.B. he would kill her and then put the gun to his temple and said he would kill himself. Benton then "clicked" the gun back and a bullet fell out. Benton and A.B. sat on a bed and continued arguing. Benton eventually got undressed, laid back on the bed and the gun fell out of his hand. After Benton fell asleep, A.B. called the police. A police officer who responded found a .380-caliber semi-automatic handgun on the bed near Benton's hand and a .380-caliber round on the floor.
On September 3, 2014, the Merced County District Attorney filed an information that, in addition to the charge, enhancements and allegations he pled to, charged Benton with possession of a firearm by a felon (count 2/§ 29800, subd. (a)) and a personal arming enhancement (§ 12022.5, subd. (a)) that attached to count 1.
On July 7, 2015, pursuant to a plea bargain, Benton entered his plea as noted above in exchange for the dismissal of count 2 and the arming enhancement and a stipulated term of 13 years.
On August 3, 2015, the court appointed new counsel to represent Benton.
On August 31, 2015, defense counsel filed a motion to withdraw plea alleging that Benton did not enter his plea voluntarily because, among other things, his original defense counsel coerced him into entering a plea by telling him he would receive a prison term of 28 years if he did not accept the plea bargain.
On September 17, 2015, the court heard and denied Benton's motion to withdraw plea.
On September 23, 2015, defense counsel filed a sentencing memorandum and a request that the court strike Benton's prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On October 8, 2015, the court denied Benton's Romero motion. The court then struck one of the prior prison term enhancements and sentenced Benton to an aggregate 12-year prison term, a doubled, aggravated term of six years on his criminal threats conviction, a five-year serious felony enhancement, and a one-year prior prison term enhancement.
On October 20, 2015, Benton filed a timely appeal. However, he did not obtain a certificate of probable cause.
Benton's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on April 15, 2016, Benton raises numerous issues, e.g., that defense counsel did not prepare for trial, that defense counsel coerced him into entering his plea by telling him he would receive a 28-year sentence if he did not, and that he did not have a prior serious felony conviction.
"Section 1237.5 provides in relevant part: 'No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere ... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.' [ ] Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
Benton did not obtain a certificate of probable cause. Nor does he raise any search or seizure issues or issues regarding proceedings that occurred subsequent to his plea that relate to sentencing. Thus, none of the issues he raises are cognizable on appeal.
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.