Opinion
A131144
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. VINCENT PHILLIP MITCHELL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. Nos. CR1006239 & CR063348BS)
After defendant Vincent Mitchell pleaded guilty to first degree burglary and failure to appear while out on bail and admitted that he used a firearm in the commission of a felony, the court sentenced him to 12 years and eight months in state prison. Defendant appeals, and his appointed counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues requiring briefing, and affirm.
BACKGROUND
Since defendant pleaded guilty prior to trial, we derive the factual background from the preliminary hearing transcript and probation report.
On the night of June 8, 2006, defendant went to the home of James Ryan on Bayside Road in Arcata. Ryan was home with his acquaintance Matthew Parsons. During a discussion among the three men regarding a failed drug transaction, defendant drew a gun, announcing that it was a robbery. He took $300 from Ryan, $3,000 from Parsons, and over five pounds of marijuana, which his accomplice, Tina Adams, took outside and placed in her car. At some point, defendant pointed his gun at Ryan's face at close range, and when Ryan attempted to wrestle it away, he was shot in the leg. Defendant pistol-whipped both victims and shoved his gun in Parson's mouth while Parsons knelt on the floor. He ordered both victims to strip and then moved them towards the rear of the house. Parsons, fearing for his life, convinced defendant that he and Ryan could get more cash on the Arcata Plaza, so defendant ordered them to put their clothes back on. All four then left the house.
As they were walking out the front door, Arcata police officer Vincent O'Connor, who was responding to a radio broadcast concerning an unknown disturbance, arrived at the house. Officer O'Connor announced himself to the group, and as soon as he did so, Ryan ran past him and yelled, "I've been shot." Parsons ran into the neighbor's yard yelling, "He has a gun." Officer O'Connor drew his gun, training it on defendant and Adams. Defendant retrieved a gun from the back of his pants and dropped it on the ground, and then laid down per Officer O'Connor's order. Defendant was arrested without incident.
Defendant was released on bail and scheduled for arraignment on June 27, 2006. He failed to appear, however, and the court issued a bench warrant. Defendant evaded capture until June 15, 2010, when he was arrested in Las Vegas, Nevada. He was subsequently extradited to Humboldt County.
By information dated September 10, 2010 (case no. CR063348BS), the district attorney filed an information charging defendant with first degree residential robbery (count 1; Pen. Code, § 211); first degree burglary (count 2; § 459); kidnapping to commit another crime (count 3; § 209, subd. (b)(1)); and assault with a firearm (count 4; § 245, subd. (a)(2)). The information alleged that counts 1, 2, and 3 were serious felonies within the meaning of section 1192.7, subdivision (c) and that all counts were violent felonies within the meaning of section 667.5, subdivision (c). As to counts 1 and 3, it was further alleged that defendant personally used a firearm within the meaning of section 12022.53, subdivision (c). As to count 2, it was alleged that the offense was a violation of section 462, subdivision (a), and that defendant was armed with a firearm within the meaning of section 12022, subdivision (a)(1). In a separate case (no. CR1006239), defendant was charged with failing to appear while out on bail in another matter (§ 1320.5). Defendant pleaded not guilty as charged and denied all special allegations.
All statutory references are to the Penal Code.
The enhancement was subsequently amended to section 12022.5, subdivision (a), as it was determined that section 12022, subdivision (a)(1) did not encompass burglary charges.
On November 5, 2010, pursuant to a negotiated plea agreement, defendant pleaded guilty in case no. CR063348BS to count 2 (first degree burglary) and admitted that he used a firearm during the commission of the felony. On the People's motion, the court then dismissed counts 1, 3, and 4 and the remaining special allegations. In case no. CR1006239, defendant pleaded guilty to count 1 (failing to appear while out on bail).
On January 14, 2011, the court sentenced defendant to the low term of 2 years on count 2 with a consecutive 10-year term on the enhancement and a consecutive eight-month term on the failure to appear charge, for a total prison term of 12 years, eight months.
This timely appeal followed.
DISCUSSION
Following a plea of guilty, the scope of reviewable issues before us is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.) We conclude there were no arguable irregularities in the proceedings.
Defendant's guilty plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
The sentence imposed was authorized by law.
Defendant was represented by competent counsel who zealously guarded his rights and interests. In his notice of appeal, appellant states that he "wishes to appeal his sentence . . . based upon an alleged conflict of interest. The conflict is based on the grounds that the Public Defender's Office had represented the victim in his case." Defendant raised the same conflict of interest issue at a Marsden hearing shortly prior to sentencing. According to defendant, Deputy Public Defender Jonathan McCrone, who had represented defendant in the present matter up until a certain point, previously represented victim Ryan in another matter. As a result, defendant questioned whether he had "a fair defense" and requested new representation. The hearing was continued to allow Deputy Public Defender Greg Elvine-Kreis, who was then representing defendant, to look into the conflict of interest allegation.
People v. Marsden (1970) 2 Cal.3d 118.
At the continued hearing, Elvine-Kreis advised the court that the public defender's office had conducted a conflict check at the outset of the case and determined there was no conflict. Nevertheless, in light of defendant's allegations, Elvine-Kreis, along with Humboldt County Public Defender Kevin Robinson, conducted a second conflict check. According to Elvine-Kreis, they determined that "[t]here [was] some past representation, but nothing that would rise to the level of a conflict." In light of the public defender's representation, the court denied defendant's Marsden motion. Nothing in the record suggests that there was merit to defendant's conflict of interest allegation, nor do we find any indication that defendant received anything less than competent, zealous representation by the public defender's office.
Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.
Richman, J. We concur: Kline, P.J. Haerle, J.