Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. Nos. FCR238487, FCR239067.
GEMELLO, J.
Frank Torris Gonsalves, Jr. appeals from a judgment following his no contest pleas to two counts of evading a police officer. The court originally sentenced him to five years eight months in state prison but subsequently recalled the sentence and reduced it to four years eight months. Gonsalves’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Gonsalves has not filed a supplementary brief. We find no arguable issues and affirm.
BACKGROUND
The facts of Gonsalves’s offenses are taken from the probation department’s presentencing report. On December 19, 2006, a California Highway Patrol officer observed Gonsalves traveling on a motorcycle at 100 miles per hour. After initially pulling over in response to the officer’s signals, Gonsalves sped off and led the officer on an extended pursuit. Gonsalves reached a speed of 115 miles per hour, drove along residential sidewalks and a walkway at speeds of 40 to 50 miles per hour, ran several red lights and stop signs, and had several near collisions. The pursuit ended when Gonsalves drove through a center median, ran into an embankment, became airborne, and landed 25 feet from his motorcycle. In Solano County case number FCR238487, he was charged with felony evasion of an officer with willful disregard of safety (Veh. Code, § 2800.2, subd. (a); count 1) and driving with a license suspended for driving under the influence (Veh. Code, § 14601.2, subds. (a); count 2). As to count one, it was alleged that he committed the offense while released on bail and on his own recognizance within the meaning of Penal Code section 12022.1; and that he served a prior prison term within the meaning of section 667.5, subdivision (b). As to count two, it was alleged that he had two prior convictions for violating Vehicle Code section 14601.2, subdivision (a). On December 21, 2006, Gonsalves was appointed counsel. He pled not guilty and denied the allegations.
All statutory references are to the Penal Code unless otherwise indicated.
On January 9, 2007, a uniformed Vacaville police officer approached Gonsalves as he was sitting in a pickup truck in a parking lot, intending to arrest him on outstanding warrants. Gonsalves sped off, jumped a curb and led the officer on a car chase. He ignored police sirens and lights, ran red lights and a stop sign, straddled traffic lanes, drove at high speeds, and had near collisions with other vehicles. His truck finally came to a stop due to mechanical problems. In Solano County case number FCR239067, he was charged with evasion of an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a); count 1) and driving with a license suspended for driving under the influence (Veh. Code, § 14601.2, subd. (a); count 2). As to count one, it was alleged that he committed the offense while released on bail and on his own recognizance in two other criminal matters (including case number FCR238487) within the meaning of section 12022.1; and that he served a prior prison term within the meaning of section 667.5, subdivision (b). As to count two, it was alleged that he had two prior convictions for violating Vehicle Code section 14601.2, subdivision (a). On January 11, 2007, Gonsalves was appointed counsel. He pled not guilty to these charges and denied the allegations. On January 24, Gonsalves waived his right to a preliminary hearing in both cases.
On February 21, 2007, Gonsalves pled no contest to evasion of an officer in both cases and to the section 12022.1 enhancement allegation in case number FCR239067. He signed a written waiver form that indicated he would receive a maximum combined prison sentence of five years eight months and the prosecutor would seek dismissal of the second counts in both cases, dismissal of the prior prison term allegation in case number FCR239067; and dismissal with a Harvey waiver of another pending criminal matter (case number FCR237476) involving a high speed police pursuit of Gonsalves in which he drove with willful disregard of safety. (People v. Harvey (1979) 25 Cal.3d 754.) The waiver form indicated a “possible placement at Delancey.” The court accepted his pleas and ordered a presentencing report.
Gonsalves was statutorily ineligible for probation absent unusual circumstances. (§ 1203, subd. (e)(4).) The probation report recommended denial of probation. The probation officer wrote that Gonsalves’s stability within the community was questionable since he had been unemployed since 2006. His criminal record demonstrated offenses of increasing seriousness. His performance on state parole was unsatisfactory, with three recommitments to prison. Finally, his conduct in the current offense demonstrated complete disregard for the safety of others. Gonsalves told probation he committed the offenses because he was under the influence of methamphetamines. However, the officers did not observe signs of intoxication and Gonsalves told the officers at the time that he fled because he wanted to avoid a third strike conviction.
At the March 20, 2007 sentencing hearing, Gonsalves asked the court to place him on probation on the condition he complete the Delancey Street residential treatment program, to which he had been accepted. He said that if he was granted probation, he would waive his rights under Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] so he could be sentenced to an upper term on one count and a total five-year eight-month sentence, which would be suspended. The court denied probation because Gonsalves was “too great a danger to society.” The court imposed the upper term for the evasion count in case number FCR239067, based on Gonsalves’s criminal history, rejecting Gonzalves’s contention that jury findings were necessary under Cunningham. Gonsalves’s criminal history dated back to 1994 and included three misdemeanors and two felony convictions, one for the same offense for which he was currently being sentenced. The court added a two-year enhancement under section 12022.1 and imposed a consecutive eight-month sentence for the evasion count in case number FCR238487, for a total sentence of five years eight months.
On March 26, 2007, Gonsalves filed a combined motion for recall and resentencing and motion to withdraw his plea. He argued that the court should recall his sentence and resentence him to the middle term for the evasion count in case number FCR239067 because imposition of the upper term violated his rights under Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856]. In the event his Cunningham claim was unsuccessful, he argued that he should be permitted to withdraw his plea because both the district attorney and his defense counsel had told him during plea negotiations that the maximum sentence the court could impose under Cunningham was four years eight months. His defense attorney had told him the only way he could receive the five-year eight-month sentence was if he waived his jury sentencing rights as part of a grant of probation.
The district attorney opposed the motion. He argued the five-year eight-month sentence was proper under the prior conviction exception to Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856]. He also argued the court only had the power to recall a sentence on its own motion and only after the defendant had been delivered to the custody of the Director of Corrections. (§ 1170, subd. (d).) Gonsalves was still in the sheriff’s custody. He also argued the motion to withdraw the plea was procedurally barred. (§ 1018.)
The minute order for the hearing on the motions states, “The Court, after review of the court reporters’ transcript from 2-21-07[,] indicates the solution for counsel would be to file a writ.” The court scheduled a May 1, 2007 hearing on the motion to withdraw the plea. The minute order for the May 1 hearing states, “Defense indicated they will not be filing a writ at this time. The sentence of 3/20/07 remains in full force & effect.” Gonsalves filed a notice of appeal April 27, 2007.
The appellate record has been augmented with trial court records filed after this appeal was taken. On May 21, 2007, Gonsalves renewed his motion to recall the sentence. He argued that he should be resentenced in the interest of justice because he received erroneous advice during plea negotiations that the maximum sentence he could receive was four years eight months. At the July 11, 2007 hearing on the motion, district attorney said defense counsel’s representations were consistent with his understanding about the effect of Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856]. The district attorney did not object to the court’s recalling the sentence and reducing it to a four-year eight-month term. The court did so, imposing the middle term of two years for the evasion count in case number FCR239067, a two-year enhancement under section 12022.1, and a consecutive eight-month term for the evasion count in case number 238487.
DISCUSSION
Gonsalves made a knowing and voluntary waiver of his constitutional rights when he entered his no contest pleas. There was ample factual basis for the pleas. Sentencing was consistent with the governing statutes, the court’s scope of discretion and Gonsalves’s Sixth Amendment rights. (See People v. Black (2007) 41 Cal.4th 799, 813, 818-819.) Any error in informing Gonsalves of the consequences of his plea under Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856] was rendered moot by the court’s recall of the original sentence and imposition of a reduced sentence.
Gonsalves was represented by legal counsel throughout the proceedings. His appellate counsel advised him of his right to file a supplementary brief to bring to the court’s attention any issue he believed deserved review. (People v. Kelley (2006) 40 Cal.4th 106.) He did not file a supplementary brief.
There are no legal issues that require further briefing. We find no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
We concur: JONES, P.J., NEEDHAM, J.