Opinion
E069311
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES LEE JACKSON II, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR052153) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
In January 2017, pursuant to a negotiated plea agreement, defendant and appellant Charles Lee Jackson II pled no contest to assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). In return, the remaining allegations were dismissed and defendant was placed on formal probation for three years on various terms and conditions of probation.
All future statutory references are to the Penal Code unless otherwise stated.
After defendant violated the terms of his probation, in July 2017, defendant filed a motion to withdraw his no contest plea on the ground that he was not correctly advised of his sentencing range. In August 2017, the trial court heard and denied the motion. Defendant appeals from the denial of his motion to withdraw his no contest plea. Based on our independent review of the record, we find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from the police report.
Defendant intentionally rammed his car twice at his sister-in-law's vehicle while she was seated inside her vehicle. Defendant's actions caused his sister-in-law to suffer injuries.
Following a preliminary hearing, on October 12, 2016, an information was filed charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1); count 1). The information further alleged that during the commission of the offense, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged that defendant had suffered one prior prison term (§ 667.5, subd. (b)).
On January 30, 2017, the information was amended to add a count 2 for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). Pursuant to a negotiated plea agreement, defendant thereafter pled no contest to count 2, in exchange for the dismissal of the remaining allegations and a grant of probation for a period of three years on various terms and conditions. Prior to entering his plea, defendant was advised of the plea agreement and the consequences of pleading guilty. The trial court asked defendant whether he understood his plea agreement and the consequences of pleading guilty, and defendant responded in the affirmative both times. The trial court also advised defendant of his constitutional rights, enquired whether defendant understood his constitutional rights, and whether defendant would be giving up his constitutional rights. Defendant replied in the affirmative and indicated he understood his rights. When asked whether he had any questions about his rights or his probationary terms, defendant replied in the negative both times. Defendant also indicated he had sufficient time to discuss his decision with his attorney, and quickly asked his attorney a question before proceeding with his no contest plea. After directly examining defendant, the trial court found that defendant read and understood his plea form and that defendant understood the charges and consequences of his plea. The trial court also found that defendant understandably and intelligently waived his constitutional rights, that defendant entered into the plea freely and voluntarily, and that there was a factual basis for defendant's plea. Immediately thereafter, in accordance with his plea agreement, defendant was placed on formal probation for three years on various terms and conditions of probation, and the remaining allegations were dismissed.
The clerk's minute order incorrectly indicates count 1 was amended to assault by means of force likely to produce great bodily injury. However, the reporter's transcript of the January 30, 2017 hearing clearly reflects the information was amended to add a count 2. The court stated, "It appears from the agreement as an initial matter there's a motion to amend the Information to allege a Count 2, which would be a violation of Penal Code Section 245(a)(4); is that correct?" Both parties agreed, and the court accepted the amendment. Generally, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.)
On February 7, 2017, a petition to revoke defendant's probation was filed, alleging defendant failed to report to his probation officer upon release from custody and failed to keep his probation officer informed of his place of residence. Defendant's probation was thereafter revoked.
On May 1, 2017, defendant denied violating his probation, and a formal probation violation hearing was set.
On July 24, 2017, defendant filed a motion to withdraw his no contest plea on the basis he was incorrectly advised of the sentencing range for count 2. Defendant noted that in the plea form, his counsel had written the sentencing range for assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(4) as "16 months, 2 years, 3 years" when, in fact, the sentencing range for this offense is "2 years, 3 years, 4 years."
On July 26, 2017, the People filed an opposition to defendant's motion to withdraw his plea, arguing that defendant failed to show prejudice or that he did not understand his potential sentence exposure. The People pointed out that at the change of plea hearing, the trial court specifically advised defendant of the consequences of his plea, including the maximum possible term of four years in state prison.
Specifically, at the change of plea hearing, the court stated: "Some of the direct consequences of a guilty plea are that you can be sent to State Prison for up to four years. That would be followed by a period of parole of three to four years. I have to impose a fine that you'll have to pay. It's anywhere between $300 and $10,000. There is a probation revocation fine also between $300 and $10,000. . . . Do you understand?" Defendant replied, "Yes, sir."
The trial court heard defendant's motion to withdraw his plea on August 9, 2017. Following argument, the trial court denied defendant's motion.
On October 6, 2017, defendant filed a notice of appeal and a request for a certificate of probable cause to challenge the validity of the plea. Defendant's request for a certificate of probable cause was granted on October 11, 2017.
On November 22, 2017, subsequent to defendant's notice of appeal, a hearing on the petition to revoke defendant's probation was held. Defendant waived an evidentiary hearing and admitted the probation violation. Defendant was sentenced to the term of two years in state prison, but immediately released as his pre-imprisonment credit exceeded the sentence imposed. (§ 1170, subd. (a)(3).) --------
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, 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 conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.