Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. CH39407
Lambden, J.
This appeal is taken after a plea of nolo contendere and conviction following denial of appellant’s request to vacate the appointment of trial counsel. His counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Appellant filed a supplemental brief.
STATEMENT OF FACTS
On April 4, 2005, around 11:10 p.m., officers responded to a carjacking report at Aldengate Street and Hesperian Boulevard in Hayward. The victim was a 78-year-old man who was carjacked by a stranger, later identified as the appellant. We note that there are variations in the victim’s account of how the carjacking occurred. We also note that the victim is a Tongan man with limited English abilities. Because initial interviews with police officers were conducted only in English, the victim appears to have misunderstood some of the questions that were asked and failed to give officers an accurate account of the carjacking. What follows is the account of the carjacking using information the victim gave the police with the help of an interpreter.
On April 4, 2005, the victim became lost while driving back home from church. The victim lived with his daughter and was driving her blue 1990 Nissan Stanza. He turned into a Valero gas station at the corner of Hesperian and A Streets in Hayward to obtain directions. The victim tried to ask a store employee how to find “Kelly Road.” He returned to his car after he was unable to understand the directions he received. When he was back in the car, an African-American male approached the vehicle from the passenger side. This man was later identified as the appellant. Appellant told the victim that he could show him Kelly Road, but that appellant would have to come along to give him the directions. The victim agreed and after getting into the vehicle, appellant proceeded to give the victim driving directions.
The victim testified that he became nervous while driving with the appellant. After driving about two miles, appellant told the victim to pull over to the side of the road. Appellant claimed he told the victim to pull over because the victim was “driving recklessly” and “endangering our safety.” After the victim pulled over, appellant made a pushing movement on the victim with one hand and took the keys out of the ignition. Appellant then got out of the vehicle and walked around to the driver’s side. The victim got out of the vehicle and appellant grabbed the front of his jacket and shook him. The victim was frightened and fled down the street, leaving the vehicle and car keys behind. When he arrived at a second Valero gas station, a customer at the station called 911.
After the police arrived at the gas station and spoke with the victim, the officers went to the location where he had left the car, but it was no longer there. The following day, April 5, 2005, the vehicle registration number (VIN number) of the carjacked vehicle was entered into the stolen vehicle system (SVS).
On April 7, 2005, officers responded to a call regarding a possible robbery in Alamo. Appellant was detained at the scene with two other men. The VIN number check was run on a vehicle at the scene, which appellant claimed was his. No exact match was found in the SVS. However, the SVS did return a description matching that of the vehicle, but with the VIN number being off by one letter or number. Appellant was not arrested.
On April 15, 2005, appellant was pulled over in Oakland for traffic violations. He was driving a blue Nissan Stanza that did not have front or rear license plates and had a cracked front windshield. Appellant could not produce a driver’s license or identification. During the stop, the officer noticed a ziplock bag in the ashtray which appeared to contain marijuana seeds. Appellant was detained and searched. A small ziplock bag of marijuana was found in one of appellant’s socks. Another officer ran a records search using appellant’s name and discovered that he was on probation. A VIN number check was run and returned a match reporting the vehicle as stolen in a carjacking. Appellant was arrested and taken into custody.
On April 19, 2005, the primary investigating officer contacted the victim and provided him with a photo line-up. The victim was unable to positively identify appellant.
When appellant was arrested by the police on April 15, 2005, he claimed that the vehicle was his and that he had bought it from another person. That same day, in his interview with the investigating officer, appellant initially maintained that he had purchased the car from another man. Later in the interview, appellant changed his story and said that he had met the victim at the gas station. He claimed that he had only meant to help the victim get home, but that the victim’s driving had been dangerous so appellant had told him to pull over. Appellant also claimed that the victim had told him that he could take the car, and that appellant had intended to return the vehicle.
PROCEDURAL BACKGROUND
A preliminary hearing was held on July 28, 2005. Appellant was charged by information, filed on August 10, 2005, with one count of carjacking (Pen. Code, § 215, subd. (a)). Appellant had several prior convictions which were added as prison term enhancements. They included: two convictions in 2001 and 1988 for possession for sale of cocaine base (Health & Saf. Code, § 11351.5 ), a 1999 conviction for possession of marijuana for sale (§ 11359), two second degree robbery convictions in 1995 and 1989 (Pen. Code, § 211), a 1992 conviction for possession for sale of a controlled substance (§ 11351), and conviction for possession for sale of cocaine (§ 1131.5).
All statutory references are to the Health and Safety Code unless otherwise indicated.
On February 10, 2006, appellant’s court-appointed attorney filed a declaration of conflict of interest. On February 15, 2006, private counsel was appointed. After appellant withdrew his time waiver on October 20, 2006, a motion to dismiss was granted on December 19, 2006, for failure to give appellant a speedy trial. That same day, charges were refiled with two additional enhancements for a violent crime on the vulnerable (Pen. Code, § 667.9, subd. (a)) and crime against the elderly (Pen. Code, § 1203.09, subd. (f)).
A preliminary hearing was held on January 3, 2007. At the hearing, appellant’s motion to dismiss the new enhancements based on a claim of vindictive prosecution was denied. An amended information, filed January 17, 2007, charged appellant with one count of carjacking with two enhancements for crimes against the vulnerable and elderly. Appellant’s prior convictions were also still included as prior prison term enhancements.
Appellant’s Marsden motion was denied on January 30, 2007. Appellant’s petition to proceed in propria persona was filed and granted on February 2, 2007. On February 28, 2007, appellant’s motion to dismiss was denied. On March 2, 2007, appellant’s motion for a private investigator was granted and his motion for advisory counsel was denied. On March 9, 2007, the prosecution filed a motion to amend the information to include a second count of violation of Vehicle Code section 10851, subdivision (a), which was granted five days later. The court denied appellant’s motions to dismiss on March 12 and 13, 2007. Two days later, the court granted appellant’s motion for a bifurcated trial on the prior convictions and appellant waived time. The court reappointed counsel for appellant on April 2, 2007. On June 22, 2007, appellant filed a motion to dismiss the information based on grounds of vindictive prosecution. On July 10, 2007, appellant’s motion to dismiss was denied.
Jury selection began on July 17, 2007. Appellant’s motion to suppress was filed on July 20, 2007.
On July 25, 2007, appellant changed his plea from not guilty to no contest. He stated that he did not want to return to court and gave up his right to wait for sentencing until after a probation report was issued and sentencing was conducted that same day. Appellant confirmed that he understood the consequences of signing the plea agreement and agreed to waive his rights. Appellant gave up his right to be present for the review date and the setting of restitution.
The court accepted new plea of no contest and appellant was found guilty of one count of carjacking (Pen. Code, § 215, subd. (a)). The court found as proven the first prior conviction of second degree robbery as a strike (Pen. Code, § 211), the enhancement pursuant to Penal Code section 667.9, subdivision (a), the elderly enhancement charge (Pen. Code, § 1203.09, subd. (f)), and the fourth prior charge of possession of marijuana for sale (§ 11359) as a strike. The balance of the information and other allegations were stricken or dismissed. Appellant was sentenced to 17 years in state prison, ordered to pay restitution fines of $400, and given 952 days credit for time served.
On August 22, 2007, appellant filed a notice of appeal from the final judgment and sentence, along with a request for certificate of probable cause. On September 27, 2007, appellant was appointed counsel for his appeal. On November 14, 2007, a notice was sent to counsel notifying counsel that the time for filing the opening brief had expired and that the brief needed to be filed within 30 days of the notice. Counsel’s request for extension of time to file the opening brief was granted. Appellant’s counsel filed the opening Wende brief on January 15, 3008. On January 30, 2008, appellant’s request to vacate the appointment of counsel of record and to appoint new counsel was denied.
On January 30, 2008, appellant filed a written document on his own behalf, entitled “Appellant’s Summary’s [sic] Main Facts,” for the appellate court’s consideration.
DISCUSSION
We have reviewed the entire record and defendant’s written assertions and find no arguable issues.
The appellant’s supplemental brief alleged ineffective assistance of counsel on the part of his last court-appointed trial attorney and on the part of his court-appointed appellate attorney. Appellant’s claim of ineffective counsel cannot be resolved based on the available record. In conducting Wende review, we can only rely on the record before us. There is nothing in the record that would allow us to make any determination about the effectiveness or ineffectiveness of his attorneys.
There is no factual support or arguable issue regarding appellant’s claim that the prosecutor was being vindictive when filing additional charges and amended the original Information. There are also no arguable issues regarding appellant’s change of plea and subsequent sentencing.
Accordingly, the judgment is affirmed.
We concur: Kline, P.J., Richman, J.