Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct.No. FVI702850, Eric M. Nakata, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
King, J.
The People charged defendant by complaint with kidnapping (count 1—Pen. Code, § 207, subd. (a)), seven counts of assault with a firearm (counts 2, 5, 7, 9, 10, 11, & 12—§ 245, subd. (a)(2)), two counts of criminal threats (counts 3 & 8—§ 422), false imprisonment by violence (count 4—§ 236), shooting at an inhabited dwelling (count 6—§ 246), discharge of a firearm with gross negligence (count 13—§ 246.3, subd. (a)), and battery against an ex-girlfriend (count 14—§ 243, subd. (e)(1)). The People additionally alleged personal use of a firearm enhancements as to counts 2, 3, 4, 5, 7, 8, 9, 10, 11, and 12. (§§ 12022.5, subds. (a) & (d), 1203.06, subd. (a)(1).) Defendant pled guilty to counts 2 and 13 and admitted the personal use enhancement attached to count 2. Counsel below stipulated that the police reports would provide the factual basis for the plea.
All further statutory references are to the Penal Code unless otherwise indicated.
In return for his plea, the remaining counts were dismissed, another case against defendant was dismissed, and the term of imprisonment on an admitted violation of probation was agreed to run concurrent to that imposed in the instant case. Defendant’s plea agreement further provided that he would be sentenced to an aggregate term of imprisonment of seven years eight months, consisting of the midterm of three years on count 2; the middle term of four years, consecutive, on the attached personal use of a firearm enhancement; and one-third the midterm of two years, consecutive, on count 13. Finally, the plea agreement provided defendant would be eligible for half-time credits. Defendant requested that the court sentence him immediately. The court sentenced defendant in accordance with his plea.
Less than three weeks later, defendant filed a letter with the court requesting permission to withdraw his guilty plea. Defendant alleged three bases for withdrawing his plea: (1) misrepresentation by defense counsel as to how much time defendant would spend in prison; (2) the victim of the offenses in the counts defendant pled guilty to had recanted her allegations; and (3) defendant was mentally challenged at the time he entered his plea. Thereafter, the same counsel who represented defendant during his plea filed a motion to withdraw the plea. The motion contains no points, authorities, or argument; rather, it simply requests the matter be scheduled for a hearing to determine whether defendant should be allowed to “move the Court for an order that he be allowed to file a motion to withdraw his plea.”
On the date of the hearing, the court stated, “I’ve spoken to Judge Nakata, who actually—[¶] . . . [¶]—took the plea. He and I are of the same opinion that [defendant’s] only recourse is to take a writ.” Defense counsel responded, “Okay. I will.” The court then denied the motion.
Defendant filed an appeal “based on the sentence or other matters occurring after the plea.” He neither requested nor procured a certificate of probable cause. 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 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: McKinster Acting P.J., Gaut J.