Opinion
A118513
4-28-2008
THE PEOPLE, Plaintiff and Respondent, v. DANDRE GREEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Dandre Green appeals from a judgment following his plea of nolo contendere and imposition of sentence. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplement brief with the court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from a nolo contendere plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation report.
An information was filed on April 21, 2006, charging defendant with second degree robbery. (Pen. Code, § 211.) The information also alleged that defendant personally used a firearm pursuant to sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b).
All statutory references are to the Penal Code.
Defendant and codefendant, Joe Jenkins, approached the victim while he was walking home in Berkeley. Defendant, who was armed with a silver semi-automatic gun, told the victim to "`just relax and look down at the ground." He took the victims backpack and asked him for the PIN number to his ATM card. Defendant stated to the victim, "`[Y]ou better not be lying," and "`we know where you live." The victim heard defendant cock his gun and order him to leave. As defendant and Jenkins got into a minivan, driven by a third individual, the victim called the police on his cell phone. Shortly thereafter, police officers stopped the minivan and removed defendant and Jenkins from the vehicle. The victim positively identified defendant and Jenkins at the scene of the detention.
Pursuant to a negotiated disposition, defendant pleaded nolo contendere to second degree robbery and admitted personal use of a firearm. It was agreed that defendant would receive the aggravated term of five years on the robbery and a consecutive term of four years for violation of section 12022.5, subdivision (a)(1), for a total of nine years. Defendant also waived his rights under Apprendi/Blakely. Defense counsel and the prosecutor agreed that defendant would waive his preplea custody credits, but defendant was not specifically voir dired about waiving these credits nor was this waiver of credits reflected on the written plea waiver.
The section 12022.53 enhancement was stricken on the prosecutors motion after defendant entered his plea.
Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296.
At sentencing, defendant was sentenced to the agreed upon term of nine years in state prison. The trial court imposed the aggravated term of five years on the second degree robbery charge and the midterm of four years for personal use of a firearm with total postplea custody credits of 45 days. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a corresponding suspended parole revocation restitution fine, and a $100 probation investigation fee (1203.1, subd. (b)). Victim restitution was reserved for a later date. Defendant was also ordered to provide a DNA sample. (§ 296, subd. (a).)
Defendant filed a timely appeal.
II. DISCUSSION
We have reviewed the record on appeal. By pleading nolo contendere, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress or issues relating to matters arising after the plea was entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) Defendant did not obtain a certificate of probable cause.
Defendant was represented throughout the proceedings by counsel. Defendant entered his plea after being advised of his rights and the consequences of his plea.
We find no sentencing errors. Defendant was sentenced to the upper term on the robbery as part of the negotiated disposition and after waiving his rights under Apprendi/Blakely. Likewise, he was sentenced to the consecutive term of four years for personally using a firearm pursuant to the negotiated disposition and under the mandatory requirements of section 12022.5. Although defendant was not voir dired by the court or counsel about his waiver of preplea custody credits, no specific advisement is necessary as long as the totality of the circumstances show that there was a knowing and voluntary waiver. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1554.) Having carefully reviewed the record, and particularly the record of the plea, we conclude that defendant understood that he was waiving his prior custody credits as the court then said from "any time that he has earned from his arrest date to today."
We find no arguable issues that require further briefing and accordingly, affirm the judgment.
We Concur:
Stein, Acting P.J.
Swager, J.