Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA040774.
BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.
Paul S. Millsap (appellant) appeals from the trial court’s 2008 order denying his “Notice of Motion and Petition for Writ of Error Coran [sic] Nobis,” which challenged the validity of his 2001 negotiated plea of guilty to two counts of second degree robbery. (Pen. Code, § 211.) In that motion and petition, he contended that an “ambiguity ha[d] take[n] place” and “the prosecutor should not be able to change the plea and use it to strike [appellant] out and send [him] away for the rest of his life, by breaking the original agreement to one count of Second Degree Robbery and one Special Allegation under Section 12022[, subdivision] (b)....” He also contended that when he entered his negotiated plea, he misunderstood its terms and believed that he was pleading guilty to the one count of robbery and admitting the weapon use allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
We appointed counsel to represent him on this appeal.
After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.
On February 23, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On March 26, 2009, he filed a “Supplemental Brief” in which he claims that his current appellate counsel was constitutionally ineffective as she failed to challenge his 1991 plea on the grounds raised in his motion and petition for error coram nobis.
FACTS
The information charged appellant with two counts of the robbery of two victims with two related weapon-use allegations. On August 27, 1991, appellant’s trial counsel negotiated a plea offer in which appellant would be permitted to plead guilty to one count of robbery and admit one allegation of the use of a deadly or dangerous weapon, a box cutter. In exchange for his plea and admission, he was to serve an aggregate term of four years in state prison, consisting of a three-year term for the robbery enhanced by a one-year term for the use of the box cutter. As the prosecutor was taking the plea, appellant appeared reluctant to admit the personal use of the box cutter pursuant to section 12022, subdivision (b). As an alternative, in lieu of admitting the use of the box cutter, the prosecutor suggested that appellant plead guilty to the two charged counts of robbery. Again, in exchange for his pleas, appellant would be sentenced to a four-year prison term. Appellant’s trial counsel explicitly agreed. The trial court explained the new plea offer to appellant and gave him and his trial counsel an opportunity to discuss the new plea offer. The trial court told appellant that he could plead guilty pursuant to either of the plea offers and that his plea would result in an aggregate four-year prison term.
Attached to the “Supplemental Brief” is a portion of the 1991 probation report. It indicates that the facts underlying the current offenses were that appellant confronted two women on the street using a box cutter in a threatening manner and took their purses from them. The women fought back, and a police patrol unit saw the melee and arrested appellant.
Appellant complained that what he wanted was a three-year prison term. Trial counsel explained to the trial court that at the preliminary hearing, appellant had been offered a three-year prison term. However, that offer was withdrawn, and the plea offer made today was for the four-year prison term. Appellant protested that he was never asked whether he would accept the three-year plea offer. The trial court said that at this point, it did not want to address this collateral claim and explained to appellant that his maximum exposure to a state prison term was at least eight years. The prosecutor noted for the record that appellant had a prior conviction that was not alleged in the information and which potentially could be alleged if appellant chose to go to trial. The trial court told appellant that it would set the matter for trial if that was what appellant wanted. Appellant replied that he would accept the four-year prison term. The trial court asked appellant whether he wanted to accept the plea offer that involved pleading guilty to two counts of robbery, and appellant replied, “Yeah.”
The trial court inquired whether appellant had had sufficient time to discuss the matter with trial counsel, and appellant said, “Yeah.” The prosecutor advised appellant of the requisite constitutional rights, and appellant waived those rights and entered pleas of guilty. Trial counsel stipulated that there was a factual basis for the plea. The trial court sentenced appellant as promised, imposing a three-year middle term for the robbery in count 1 and a consecutive one-year term for the robbery in count 2 (one-third the middle term of three years). At the prosecutor’s request, the trial court dismissed the related weapon-use allegations.
In the trial court, on October 17, 2008, appellant filed a “Notice of Motion and Petition for Writ of Error Coran [sic] Nobis.” In the motion and petition, he asked to set aside his plea and enter a new and different plea to one count of robbery with an admission to the personal use of a deadly and dangerous weapon. He claimed that at the time of his plea, he misunderstood the terms of the plea offer and that it was improper to change the plea offer midstream as his guilty pleas had later, in unrelated proceedings, resulted in his obtaining a life term in prison pursuant to the “Three Strikes” law. (§§ 667, subds. (b)-(i); 1170.12.)
The trial court denied the motion and petition for error coram nobis. Its minute order said the following. The trial court had read and reviewed the reporter’s transcript of the 1991 plea proceedings. It observed that apparently, after his 1991 guilty pleas in an unrelated case, appellant had been convicted and sentenced pursuant to the Three Strikes law to a life term of 32 years to life in state prison. The reporter’s transcript of the 1991 plea proceedings indicated that appellant had agreed to enter guilty pleas to the two counts of robbery, in lieu of the original plea bargain offered to him, which involved a plea to one count of robbery and the admission of a weapon use. During the 1991 proceedings, appellant was given a choice concerning which plea offer he could take, and he chose to plead guilty to the two counts of robbery, in lieu of the other proposed disposition.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.