Opinion
A131839
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 212163)
Defendant Gabriel Jones appeals the judgment following his plea of guilty to second degree robbery (Pen. Code, § 211) and admission of a firearm enhancement (Pen. Code, § 12022.5, subd. (a)). His appellate 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.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
B ACKGROUND
On March 9, 2010, the San Francisco District Attorney filed a felony complaint charging defendant with eight counts: (1) second degree robbery (§ 211) with use of a firearm (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, sub. (a)-(b)); (2) assault with a firearm (§§ 245, subd. (a)(2), 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (a)-(b)); (3) assault with a semiautomatic firearm (§§ 245, subd. (b), 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (a)-(b)); (4) assault with a firearm (§§ 245, subd. (a)(2), 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (a)-(b)); (5) assault with a semiautomatic firearm (§§ 245, subd. (b), 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (a)-(b)); (6) possession of firearm by felon (§ 12021, subd. (a)(1)); (7) convicted person carrying loaded firearm (§ 12031, subd. (a)(1)); and (8) convicted person having concealed firearm (§ 12025, subd. (a)(1)). Prior serious felonies and prior felonies with state prison time were also alleged.
Defendant, represented by appointed counsel, was arraigned on March 9, 2010. Following defendant's personal waiver of time, the case was called for preliminary hearing on April 15, 2010. After defense counsel announced there was a negotiated disposition and set forth the terms, defendant stated: "I feel like I'm being pressured to plead guilty to something I didn't really do . . . ." The trial court immediately called a recess so defendant could speak with counsel and asked that counsel advise the court when defendant was ready to proceed.
When the trial court recalled the matter, it conducted a confidential Marsden hearingand thereafter denied appointment of substitute counsel. After full advisement and voir dire as to the rights he was waiving, defendant then pleaded guilty to one count of second degree robbery and admitted a firearm enhancement. The court found the plea to be knowingly and voluntarily made, and pursuant to stipulation, found there to be a factual basis for the plea based on the police report. The case was continued for sentencing, disposition of the remaining counts and allegations, and disposition of defendant's revoked probation.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On June 11, 2010, the trial court appointed "conflict counsel" and continued the case for hearing on a motion to withdraw the plea. After numerous continuances, defendant filed a written motion to withdraw his plea on March 4, 2011. Defendant claimed the court had erred in denying his Marsden motion, that he was pressured and confused, and his plea was not knowing and intelligent. The prosecution filed opposition.
On April 1, 2011, defendant withdrew his motion to withdraw his plea, and was sentenced to a three-year midterm for the robbery and a consecutive, four-year midterm on the firearm enhancement, for a total of seven years in state prison. He received a total of 450 days' credit, and was ordered to pay a $200 restitution fine (§ 1202.4) and an additional $200 restitution fine, suspended unless defendant's parole is revoked (§ 1202.45). He was also ordered to pay a $40 court security fee (§ 1465.8), and a $30 immediate critical needs assessment fee (Gov. Code, § 70373, subd. (a)). All other counts were dismissed and allegations, stricken.
On April 26, 2011, defendant submitted a notice of appeal and request for a certificate of probable cause. As to the latter, defendant stated: "Sole contention is that my rights were not properly waived as to the enhancement. Allegation of firearm [enhancement] use was admitted under a misunderstanding of the law." The trial court granted the requested certificate of probable cause, and defendant's notice of appeal was duly filed.
DISCUSSION
As a general rule, section 1237.5 precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied to the trial court for a certificate of probable cause for such an appeal and the trial court has issued such a document. (§ 1237.5.) Here, defendant obtained such a certificate as to one issue: whether he was properly advised on the record in connection with his guilty plea, and specifically the firearm enhancement he admitted. We therefore limit our preplea review of the record to that issue.
In his request for a certificate of probable cause as to his admission of the firearm enhancement, defendant cited People v. Casarez (1981) 124 Cal.App.3d 641. That case involved what is referred to as a "slow plea." Although the defendant pleaded guilty to a charge of robbery, he apparently believed he was not guilty of the alleged firearm enhancement since he claimed he only took the money out of the cash register drawer and it was his codefendant who held the gun on the 7-Eleven clerk. (Id. at pp. 643-644.) In any case, he agreed to have the trial court decide whether he was guilty of the firearm enhancement based on the transcript of the preliminary hearing. (Ibid.) The trial court found the defendant guilty and sentenced him to an additional year in prison. (Id. at p. 644) The issue, then, was whether the admonitions given in connection with defendant's plea to the charged offense were sufficient to cover the subsequent submission of the enhancement allegation to the trial court for decision on the merits on the basis of the preliminary hearing transcript. (Id. at pp. 645-647, see also id. at p. 650 [distinguishing taking a "straight plea" to a count that includes an enhancement].) The Court of Appeal held that while the defendant's waiver of jury trial continued and there "was mention" of the right to cross-examine witnesses, the defendant should have been re-advised of his right against self-incrimination in connection with submission of the enhancement allegation to the trial court. (Id. at p. 651.) The appellate court further held this as error per se and remanded for proper advisement and a limited new trial on the enhancement. (Id. at pp. 651-652; see also People v. Wright (1987) 43 Cal.3d 487, 493-495 [failure to give advisements and obtain express waivers prior to submission on preliminary transcript is per se error only where submission is part of a "slow plea;" otherwise, it is subject to prejudicial error analysis under Watson ].)
People v. Watson (1956) 46 Cal.2d 818, 836.
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Here, defendant did not engage in the process of making a "slow plea." Indeed, there was no preliminary hearing generating a record for any merits determination by the trial court. Rather, defendant entered a "straight plea," pleading guilty to the charged robbery offense and admitting the firearm enhancement at the change of plea hearing. He was also fully admonished as to his constitutional rights at that time and expressly and personally waived them.
As to postplea matters, defendant was ably represented by counsel. The trial court imposed sentence in accordance with the terms of the negotiated disposition, and there were no sentencing errors.
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the judgment.
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Banke, J.
We concur:
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Marchiano, P. J.
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Dondero, J.