Opinion
E043627
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. JASON MICHAEL COMINS, Defendant and Appellant.
Patrick DuNah, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant, Jason Comins, was charged by felony complaint by the District Attorney of Riverside County with one count of attempted murder with pre-meditation and deliberation. (Pen. Code, §§ 664 & 187.) The felony complaint further alleged that defendant personally discharged a firearm causing great bodily injury within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). A second count charged defendant with assault with a firearm on the same victim. (§ 245, subd. (a)(2).) An allegation that defendant personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 1192.7, subdivision (c)(8) was also charged as to this count as was an allegation that defendant personally inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). The complaint further alleged that defendant committed the above-listed offenses while released from custody prior to the judgment becoming final on the primary offense within the meaning of section 12022.1.
Pursuant to section 859a, defendant, represented by counsel, pled guilty to the amended charge of attempted murder in the second degree and admitted an amended gun use enhancement alleged pursuant to section 12022.53, subdivision (c) in exchange for a negotiated sentence of 27 years in state prison. In accordance with the negotiated disposition, the remaining counts and special allegations were dismissed and stricken on motion of the People and in the interest of justice pursuant to section 1385.
Prior to sentencing retained counsel substituted in and defendant moved to withdraw his pea. Following a contested hearing, defendants motion was denied.
Thereafter, defendant was sentenced to the negotiated term and awarded the appropriate custody credits. In defendants six open cases, (1) SWF010841, (2) SWF011077, (3) SWF011450, (4) SFW011607, (5) SWM012924, and (6) SWM023276 probation was both revoked and denied and his custody time in each of those cases was ordered to run concurrent to case No. SWF010624.
Defendants petition for writ of habeas corpus seeking the filing of a constructive notice of appeal was granted by this court on July 23, 2007. An amended notice of appeal challenging the sentence and the validity of the plea and requesting the issuance of a certificate of probable cause was filed by appointed counsel on August 13, 2007. The certificate request was granted by the superior court on August 13, 2007.
STATEMENT OF FACTS
According to the probation report, on February 8, 2005, defendant and his codefendant, Jacklyn Suzanna Jarman, shot Ira Montoya.
Thereafter, according to defendant, between the time of his arrest and the negotiated disposition on August 26, 2005, defendant never spoke to his attorney nor anyone associated with the defense outside of court. During his court appearances, defendant never spoke to his attorney for more than five minutes at any given appearance. Defendant only entered into his negotiated disposition because he was told that he could later enter a motion to withdraw from this plea after he had retained subsequent counsel. Defendant stated he learned this information from his initial defense counsel. Defendant was informed by his attorney that his maximum exposure in all his cases was 56 years to life in state prison.
Dario Bejarano, defendants initial defense counsel, testified that he has practiced as a defense counsel for approximately 30 years. The offer of 27 years which defendant accepted would have been withdrawn by the district attorney had he not accepted it on the day he did. Counsel Bejarano informed defendant that he did have the right to withdraw from his plea, but that it was the judges decision as to whether or not to grant this motion. In denying the motion to withdraw the plea of guilty, the trial court stated, "So why wouldnt Mr. Comins say to the court, `Judge, if I enter any plea today, will I be able to make a motion later and withdraw it?"
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v.Wende (1979) 25 Cal.3d 436 and Anders v.California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, J.
GAUT, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.