Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF117302C, Clarence Westra, Jr., Judge.
Alister McAlister, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
It was alleged in an amended information filed May 23, 2007, that appellant David Franklin McMillon III was guilty of possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5; count 1) and actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 2), and that he had suffered a prior serious felony conviction (Pen. Code, § 667, subd. (a)), which also qualified as a “strike,” he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)), and in committing the count 1 offense he acted for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1).
Except as otherwise indicated, all references to dates of events are to dates in 2007.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On May 24, the information was amended to add a single count of maintaining a place for the use of a controlled substance, viz. cocaine (Health & Saf. Code, § 11366), and appellant, pursuant to a plea agreement, pled no contest to that offense and admitted the strike allegation. One of the terms of the plea agreement was that appellant would be sentenced to no more than four years in state prison.
On June 6, appellant filed a “… Notice of Motion to … Initiate Request to Withdraw Plea[] [and] for Appointment of Counsel.” (Unnecessary capitalization omitted.) On June 8, the court relieved appellant’s counsel, Joseph King, as attorney of record. On July 20, attorney Raymonda K. Burnham, representing appellant, filed a notice of motion to withdraw appellant’s plea. On August 16, the court denied that motion.
On September 11, appellant filed a request that the court strike his strike conviction. On September 27, the court denied that request and imposed a prison term of 32 months, consisting of the 16-month lower term on the instant offense, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). On May 5, 2008, the court granted appellant’s request for a certificate of probable cause (Pen. Code, § 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, apparently in response to this court’s invitation to submit additional briefing, has submitted a letter in which he challenges the denial of his motion to withdraw his plea. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual summary is taken from the report of the probation officer.
On November 30, 2006, police executed a search warrant at an apartment on Northrup Street in Bakersfield. Inside the apartment, at the time, were appellant, Carl Jones and three other persons. Police searched Jones and found on his person what was later determined to be a substance containing 1.86 grams of cocaine. In searching the apartment, police found “numerous” cellular telephones. During their investigation, police determined that a person, who had been arrested earlier that day, indicated that she had purchased a controlled substance at the apartment.
Motion to Suppress Evidence
Prior to entering his plea, appellant filed a notice of motion to suppress various items, including six cell phones and a quantity of cocaine base found in the Northrup Street apartment on November 30, 2006, “as a result of a warrantless search” of the apartment and “as a result of the search performed pursuant to the subsequent search warrant in connection with the same residence.”
At the hearing on the motion, City of Bakersfield Police Officer Richard Dossey testified to the following. On November 30, 2006, he was investigating a report that “there were at least three unidentified black males in a vehicle who had guns.” Through “record checks” he determined the owner of the vehicle lived at an address on Northrup Street. He drove to the address, which was part of an apartment complex, and observed the vehicle driving away and, outside the building, appellant’s co-defendant Carl Jones. The officer shined his light on Jones, at which point Jones said, “Oh, shit,” and ran in the direction of one of the apartments.
Officer Dossey told Jones to stop and gave chase, but Jones entered one of the apartments and slammed the door behind him, just as the officer reached the door. At that point, several other officers arrived on the scene. They yelled, “Police, open the door,” and began “pound[ing] on the front door.” The officers “believed” there was a firearm in the apartment. When they “didn’t get an answer,” they “forced entry” and “immediately started clearing the bedrooms.” The officers conducted a “protective sweep” of the apartment. Officer Dossey did not observe any contraband.
Officer Dennis Eddy testified to the following. When he entered the apartment, he encountered appellant standing in the living room. He found no contraband during the protective sweep. Thereafter, the officers obtained a search warrant and conducted an “in-depth” search of the apartment.
The court denied appellant’s motion, ruling that although the initial entry into the apartment was “not justified” (unnecessary capitalization omitted), no evidence was seized before the search warrant was issued and therefore “there is nothing to suppress as a result of the [warrantless] entry.” The court specified that “this ruling does not affect any evidence gathered as a result of the warrant’s execution.” (Unnecessary capitalization omitted.)
Motion to Withdraw Plea
At the May 24 proceeding, the prosecutor recited the terms of the plea agreement on the record. Thereafter, the court advised appellant, inter alia, that under the plea agreement, appellant would be admitting a single charged offense and a strike, and he would receive a sentence of either 32 months or four years. Appellant stated he understood this. Appellant also affirmed that no one had promised him anything not discussed in open court that day or threatened him to induce him to enter his plea. Later in the proceeding, appellant entered his plea.
Appellant, at the hearing on his motion to withdraw his plea, testified to the following. He never discussed with his attorney, Joseph King, any possible defenses to the charges. According to King, the judge stated that if appellant did not accept the prosecution’s offer, appellant would be found guilty and the judge would impose a sentence of “like 22 years or something.” Appellant did not want to accept the prosecution’s offer, but King told appellant that after appellant pled no contest, King would file a motion to withdraw the plea, appellant would then have “another attorney” and “start the process over.”
In his declaration filed in support of his motion, appellant stated that King told him that after appellant entered his plea, King “would declare a conflict of interest” and appellant “would be allowed to withdraw [his] plea.” Appellant further averred, “If Mr. King had not told me that I would be allowed to withdraw my plea, I would not have accepted the plea bargain on that day.”
King testified to the following. He “established” in his first interview with appellant that appellant’s defense would be he did not possess cocaine for purposes of sale. King discussed this defense with appellant. King did not tell appellant that the judge “was implying or indicating that [appellant] would receive a 22-year prison sentence.” King “absolutely” did not tell appellant that if appellant pled no contest, King would move to withdraw his plea, the motion would be granted and appellant would be able to go forward with a new attorney. Some days after appellant entered his plea, he told King he wanted to withdraw his plea. King then tried to ascertain from appellant why he wanted to withdraw his plea. Appellant “was kind of all over the place on that,” and eventually King told appellant that if appellant was “dissatisfied with [King’s] advise [sic]”, King would have “to declare a conflict and … get out of the case, and that’s what’s happened.”
The court, in denying the motion, made the following findings. King, at various times prior to the entry of appellant’s plea, “discussed with his client the nature of the charges” and appellant’s exposure. There was some discussion between King and appellant regarding King being relieved as counsel and a new attorney being appointed to represent appellant in a motion to withdraw the plea, but such discussion occurred sometime after the entry of the plea, and therefore did not affect appellant’s decision to plead no contest. There is “nothing in the record that … reflects a false promise or promise that overcame his reluctance or that his entry of the plea was based on some sort of duress or any other form of a misrepresentation.” Appellant “entered his plea with full knowledge of the possible consequences and … he gave up each of his respective rights knowingly and intelligently ….”
DISCUSSION
On appeal, appellant argues, as best we can determine, that the court erred in denying his motion to withdraw his plea because, (1) appellant asserts, “the deal [he] took in court was on that did not include any strikes,” and therefore the imposition of sentence under the three strikes law violated the plea agreement, and (2) defense counsel was somehow complicit in the imposition of this sentence, thereby violating appellant’s constitutional right to the effective assistance of counsel.
At no time in the trial court, either in his declaration in support of his motion to withdraw his plea or in his testimony at the hearing on that motion, did appellant assert that his admission of a strike was not part of the plea agreement. His failure to raise this claim below results in waiver of this claim on appeal. (In re Marriage of King (2000) 80 Cal.App.4th 92, 117 [issues or theories not properly raised in the trial court will not be considered by the appellate court; failure to present a matter in trial court waives right to do so on appeal].) And in any event, the record belies appellant’s claim.
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.