Opinion
B200989
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. RODERICK THOMAS ERWIN, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
On June 6, 2007, Roderick Thomas Erwin led police officers on a high-speed chase when they attempted to pull him over for a traffic violation. Officers pursued Erwin for about two miles as he drove through stop signs in a residential area at speeds of between 40 and 50 miles per hour. After Erwin was arrested, police found a four-inch glass pipe in his pocket.
Erwin was charged by a three-count criminal complaint filed on June 6, 2007 with evading an officer with willful disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)) (count 1), resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)) (count 2) and possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)) (count 3) (Los Angeles Superior Court case No. KA079380).
Erwin had suffered prior convictions in three cases. In January 2006, Erwin pleaded guilty to cocaine possession (Health & Saf. Code, § 11350, subd. (a)), but entry of judgment was deferred for 18-months so Erwin could complete a drug education program (Pen. Code, § 1000) (Los Angeles Superior Court case No. KA072918). Between January and June 2006, the trial court found Erwins performance on diversion unsatisfactory and twice excluded him from the deferred entry of judgment program and reinstituted criminal proceedings against him. Each time, however, the court subsequently reinstated Erwin on the deferred entry of judgment program. On January 24, 2007, the court ordered Erwin to return for a progress report on July 23, 2007, anticipating it would be dismissing the narcotics charge because Erwin had successfully completed the program.
In the second case, Erwin was charged in November 2003 with driving with a revoked or suspended license (Veh. Code, § 14601.5, subd. (a)) and two traffic infractions. On December 12, 2006, Erwin pleaded guilty to an amended count of driving without a valid drivers license (Veh. Code, § 12500, subd. (a)). The trial court suspended imposition of sentence and placed Erwin on one-year of summary probation, subject to certain terms and conditions (Los Angeles Superior Court case No. 3PM09247).
In the third case, Erwin pleaded no contest in September 2003 to driving with a blood alcohol content by weight of .08 percent or more (Veh. Code, § 23152, subd. (b)). The trial court suspended imposition of sentence and placed Erwin on three-years summary probation subject to certain conditions, among them making monthly payments towards various fines (Los Angeles Superior Court case No. 3PM01966). Over the following years, Erwin committed various probation violations, including failing to make monthly payments. Each time the trial court revoked and reinstated probation. On January 24, 2007, the trial court agreed to allow Erwin until July 23, 2007 to pay the outstanding balance of fines to the probation department and continued his probation on the same terms and conditions.
At a June 7, 2007 hearing, Erwin agreed to dispose of all four of his cases by a negotiated plea in which he would plead guilty to evading an officer with willful disregard for the safety of persons and property (count 1) in case No. KA079380 and would admit violating probation in misdemeanor case Nos. 3PM01966 and 3PM09247 based on his plea in case No. KA079380. In exchange, Erwin would be sentenced to state prison for 16 months. Erwin was assisted at the hearing by counsel.
Erwin waived his constitutional rights and pleaded guilty to evading an officer with willful disregard for the safety of persons and property (count 1) in case No. KA079380. Defense counsel joined in the plea and stipulated to a factual basis. The trial court found Erwin intelligently, voluntarily and knowingly waived his constitutional rights and there was a factual basis for the plea. Pursuant to the plea agreement, the court sentenced Erwin to the lower term of 16 months on count 1 in case No. KA079380. Erwin received presentence custody credit of three days (two actual and one conduct day). The court ordered Erwin to pay a $20 security assessment and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45. The remaining counts were dismissed on the prosecutors motion.
In case No. KA072918, Erwin was terminated from the deferred entry of judgment program, and sentenced to the lower term of 16 months for cocaine possession to be served concurrently to the term imposed in KA079380. Erwin received the same presentence custody credit. The trial court also imposed a $20 security assessment, a $200 restitution fine and a $50 lab fee plus penalty assessments. The court suspended the imposition of a parole revocation fine.
In misdemeanor case Nos. 3PM09247 and 3PM01966, the trial court found Erwin in violation of probation, revoked probation, and sentenced Erwin to concurrent terms of 180 days, to be served concurrently with the sentence imposed in case No. KA079380, with three days credit for time served. As to each misdemeanor case, the court ordered summary probation to be terminated upon completion of the remaining 177 days of custody time.
On July 11, 2007, Erwin filed an in propria persona notice of appeal, a request for certificate of probable cause and a request to recall his sentence pursuant to Penal Code section 1170, subdivision (d). His requests were denied and this appeal ensued. We appointed counsel to represent Erwin on appeal.
After an examination of the record, counsel filed an "Opening Brief" in which no issues were raised. On December 17, 2007, we advised Erwin he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied Erwins attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)
A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause can only challenge the denial of a motion to suppress evidence or raise grounds arising after the entry of the plea that do not affect its validity. (Cal. Rules of Court, rule 8.304(b).) In his request for a certificate of probable cause Erwin claimed defense counsel rendered ineffective assistance and coerced him into accepting the plea agreement. Because Erwin is, in substance, attacking the validity of his plea, his notice of appeal is inoperative; and the appeal must be dismissed. (Pen. Code, § 1237.5; see People v. Shelton (2006) 37 Cal.4th 759, 769-771; People v. Panizzon (1996) 13 Cal.4th 68, 79.) In any event, the record reflects Erwin was properly advised of his trial rights, the consequences of his plea, including his bargained-for sentence, and he intelligently, voluntarily and knowingly waived his constitutional rights and agreed to the terms of the negotiated plea. The record fails to demonstrate defense counsel provided ineffective assistance at any time during the proceedings in the trial court. (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
The appeal is dismissed.
We concur:
PERLUSS, P. J.
WOODS, J.