Opinion
A132377
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES EVANS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 202537)
Appellant James Evans agreed to a negotiated disposition in which he received a 15-year sentence in exchange for pleading guilty to second degree robbery and admitting two prior serious felony convictions. Appellant's court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit further briefing.
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2006, police officers responded to a report of a robbery at 25th Street and Potrero in San Francisco. Witnesses told the officers they had observed a male, later identified as appellant, dragging a female victim down the street by her purse. Appellant repeatedly punched the victim in the face, punched her while he climbed into his car, and continued punching her through the open driver's side window. He began to drive off and dragged the victim about two car lengths until she dropped free after being hit by the car. The victim was transported to the hospital, where she told police officers that she had been sitting on the front porch of her apartment when appellant ran up to her, grabbed her purse, and punched her in the head. The victim did not recall being dragged by a car. The reporting officers were able to locate appellant via a global positioning system in a cell phone stolen from the victim. The victim positively identified appellant after he was taken into custody.
Because the conviction results from a plea, the facts are derived from the probation report.
On September 10, 2009, the San Francisco County District Attorney filed a two-count second amended information charging appellant with second degree robbery (Pen. Code, § 211) and unlawful evasion of a pursuing police officer (Veh. Code, § 2800.2). As to the second degree robbery charge, it was alleged that appellant was on parole at the time he committed the charged offense. (Pen. Code, § 1203.085, subd. (b).) It was further alleged that appellant had suffered a prior strike (Pen. Code, §§ 667, subds. (d) & (e), 1170.12.), had two prior convictions for serious felonies within the meaning of Penal Code section 667, subdivision (a), and had suffered 15 prior convictions for which he had served prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
In October 2008, before the second amended information was filed, appellant had appeared before Judge Harold Kahn, who indicated he would approve a guilty plea in exchange for an indicated sentence of 13 years in state prison. Judge Kahn continued the plea hearing at appellant's request so that his mother could discuss drug treatment programs with the district attorney. Judge Kahn indicated that the plea offer would remain open. However, the case was subsequently transferred to another department, and the judge in that department informed the parties Judge Kahn was not authorized to approve pleas and that she, being so authorized, would not approve the 13-year plea offer. Despite the parties' request, the case was never reassigned to Judge Kahn. Appellant filed a writ petition in this court in which he claimed the failure to reassign his case, thus removing the 13-year plea option, was the product of an improperly adopted local rule that infringed upon the power of a sitting superior court judge. In an opinion filed September 17, 2010, this court denied the writ petition. (Wells v. Superior Court (Sept. 17, 2010, A126020) [nonpub. opn.].)
Pursuant to a negotiated disposition, on February 4, 2011, appellant pleaded guilty to one count of second degree robbery and admitted the two five-year priors for serious felony convictions in exchange for an indicated sentence of 15 years. The court accepted the plea, found a factual basis for the plea based on the parties' stipulation to the facts of the preliminary hearing, and found that appellant had been informed of his rights and had voluntarily and intelligently waived those rights. The court dismissed the remaining charges and allegations on the prosecutor's motion.
The court sentenced appellant to serve a total of 15 years in state prison, composed of the aggravated term of five years for second degree robbery plus five years each for the two prior serious felony convictions. The court awarded custody credits totaling 1,981 days, consisting of 1,723 days of actual custody plus 258 days of conduct credits pursuant to Penal Code section 2933.1. The court imposed a $200 restitution fine (Pen. Code, § 1202.4) and imposed but stayed a $200 parole revocation fine (Pen. Code, § 1202.45). The court also imposed a $40 court security fee (Pen. Code, § 1465.8) and a $30 immediate critical need assessment fine (Gov. Code, § 70373, subd. (a)). Appellant was required to provide blood and saliva samples as well as print impressions pursuant to Penal Code section 296, subdivision (a)(1).
Appellant's counsel points out that the abstract of judgment incorrectly lists one of the five-year serious felony priors as a "212.5(b)" prior. "212.5(b)" is a reference to the prior serious felony conviction (for second degree robbery) and not to the five-year sentence enhancement under Penal Code section 667, subdivision (a) that results from that prior conviction. As reflected in the record, appellant's counsel has already contacted the trial court to correct this clerical error in the abstract of judgment.
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Appellant filed a timely notice of appeal in which he challenged only the sentence and matters occurring after the plea.
DISCUSSION
Appellant's counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. Appellant was afforded an opportunity to file a supplemental brief with this court but did not do so. We have reviewed the entire record and conclude no issue warrants further briefing.
DISPOSITION
The judgment is affirmed.
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McGuiness, P.J.
We concur:
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Siggins, J.
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Jenkins, J.