Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 558920
Kline, P.J.
Lisandro Martinez appeals from a judgment entered after a no contest plea. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). As the appeal is based solely on grounds occurring after entry of the plea and does not challenge the validity of the plea, it is authorized. (Cal. Rules of Court, rule 8.304(b)(4).)
FACTS
The facts, which are set forth in the Presentence Report prepared by the chief probation officer, may be summarized as follows: On March 31, 2009 (all dates are in that year), Mary Chin, a 75-year old woman, won a $3,200 slot machine jackpot at the River Rock Casino. At the casino, a man she later identified as appellant approached her and asked if she wanted to purchase a diamond ring for $40. Feeling “bothered” by the man, she walked away. Later, when she sat down in front of a slot machine, the man approached her again, asking, “Where would you like to go tonight?”
Deciding to leave the casino, Ms. Chin drove home, parked her car, and while she was searching for the key to her house, a man ran toward her, pushed her down, and stole her purse, which contained the cashed-out jackpot she had won. She was positive her assailant was the same man who approached her in the casino, although she did not see her attacker’s face.
On April 1, a police officer contacted Wells Fargo Bank and inquired whether any charges had been made to the ATM card stolen from Ms. Chin, and was told of an attempt to use it for an online gaming account in appellant’s name. Wells Fargo reported another attempt to use the card at a gas station in Daly City. On April 6, police contacted the manager of the River Rock Casino, who recalled a report of a man panhandling and trying to sell jewelry in the casino on the day of the assault on Ms. Chin. A security officer contacted the man and noted the license plate on his vehicle, which was found to be registered to a Mark Cruz in Daly City. The vehicle bearing that plate was seen leaving the casino by a security officer, who noted that the driver was an Asian male. After reviewing the DMV photo of Mark Cruz, the officer determined he was not the man seen driving the vehicle at the casino.
Two days later, Daly City police officers went to the residence of Mark Cruz and observed a man later identified as appellant urinating in the bushes in the front yard. After he was placed under arrest, appellant was found in possession of methamphetamine. When interviewed at the police station, appellant explained that his sister, who was married to Mark Cruz, lived at the house, he was waiting for her to arrive, and he urinated outside out of necessity. He admitted purchasing the methamphetamine they found, some of which he smoked the previous night. Appellant’s sister, who along with her husband was a registered owner of the vehicle seen at the casino, stated that appellant, who was then homeless, was permitted to use the vehicle. The sister consented to a search of the vehicle, in which the police found appellant’s wallet, a green wallet matching the description of the wallet taken from Ms. Chin, and cash-out receipts from the River Rock Casino bearing the date of the offense. Ms. Chin identified appellant in a photo lineup, and also identified the green wallet as the one stolen from her.
PROCEEDINGS BELOW
On April 8, the Sonoma County District Attorney filed a complaint charging appellant with inflicting pain or mental suffering on an elder (Pen. Code, § 368, subd. (b)(1)) and robbery (§ 211), both felonies, with an allegation that appellant was presumptively ineligible for probation pursuant to section 1203.09, subd. (f), because the victim was over 60 years of age.
All statutory references are to the Penal Code unless otherwise indicated.
About two months later, on June 19, appellant pled no contest to robbery and executed a waiver of rights form, at which time the remaining charge and allegations were dismissed.
Appellant, who is a citizen of the Philippines residing in the United States, acknowledged on the waiver of rights form receiving an admonition that his conviction could result in deportation from the United States. Additionally, defense counsel stated on the record at the plea hearing that he had advised appellant that since his plea was to a “serious, violent felony... deportation is a consequence of that plea.”
Appellant did not circle the words on the waiver form required to be circled in order to indicate understanding that the pleas could result in the reduction of conduct credits, but he did initial the form to indicate his understanding that, in determining the appropriate sentence and restitution, the court could consider the dismissed elder abuse charge.
Counsel’s Wende brief points out that, as stated in the Presentence Report, appellant “repeatedly proclaimed his innocence. He commented about the difficulty being in custody and shared concern for being deported to the Philippines. [Appellant] requested guidance as to whether or not he should follow through with sentencing based on the current conviction or ‘fight the case.’ He expressed interest in withdrawing his plea and requesting a change in counsel. Possible consequences were discussed and [appellant] inquired if San Quentin Prison is larger than the Sonoma County Jail facility. He commented that if he was sentenced he would at least have a release date to look forward to.”
Appellate counsel calls the foregoing information to our attention because appellant filed no Marsden motion and defense counsel did not move for new trial or request that new counsel be appointed for the purpose of making such a motion. Defense counsel did, however, file a sentencing memorandum arguing that a grant of probation was appropriate. The memorandum noted that appellant, who has three children, lost the job as a waiter he had held for 14 years, was suffering severe financial distress, had been evicted with his family from their condominium, suffered an apparent addiction to methamphetamine, and might also have a gambling addiction.
People v. Marsden (1970) 2 Cal.3d 118.
At the sentencing hearing, defense counsel ascribed appellant’s proclamations of innocence to the probation officer to the continuing effect of methamphetamine, fear, and psychological denial. However, he maintained that appellant “is at a point now where he fully recognizes his culpability. He’s willing to state it and is willing to state his remorsefulness for the event that took place on March 31st. [¶] Mr. Martinez... [is] asking the Court, based on all the circumstances, to grant him probation and a chance to rehabilitate his life, short of a prison commitment.” At that point in the proceedings, appellant stated: “Your Honor, I blame myself for what I did to her, because I could not get out of the poverty that I’m experiencing with my three kids. Because I lost my job. Our house was foreclosed. I didn’t know what — I did not know anymore what to do with myself. I wanted to kill myself. I did not know what I was going to do with myself. [¶] I hope the Court can understand me. I am really sorry for what I did.”
The trial court denied the request for probation based on its perception of the “premeditation, planning, and the seriousness of the offense.”
Appellant was sentenced to the low term of two years in state prison. Appellant was awarded credit for serving 74 days in county jail and 11 days of conduct credit, for total credit of 85 days. Appellant was also ordered to pay victim restitution in the amount of $3,200, a restitution fine in the amount of $400, and a parole revocation fine in the same amount.
DISCUSSION
Where, as here, an appellant has pled guilty or no contest to an offense, the scope of reviewable issues is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
The admonitions given appellant at the time he entered his plea fully conformed with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and his waiver was knowing and voluntary.
The record provides a factual basis for the plea.
Nothing in the record suggests appellant may have been mentally incompetent to stand trial, and he was at all times represented by competent counsel who protected his rights and interests.
The trial court had discretion to grant or deny probation, the denial of probation was not an abuse of that discretion, and the sentence imposed is authorized by law.
Our independent review having revealed no arguable issues that require further briefing, the judgment of conviction and sentence are affirmed.
We concur: Haerle, J.Lambden, J.