Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA084746 Charles D. Sheldon and Tomson T. Ong, Judges.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BIGELOW, P. J.
Louis Oliverio pleaded guilty to one count of second degree robbery and one count of petty theft with multiple prior theft-related convictions, and admitted he had suffered multiple prior convictions for which he served a prison term. (See Pen. Code, §§ 211, 666, 667.5, subd. (b).) The trial court sentenced Oliverio to a total term of seven years in state prison as follows: a three-year midterm for the robbery; a stayed sentence on the petty theft; and four consecutive one-year terms for four prior convictions with a prison term. We affirm.
All section references are to the Penal Code except as otherwise noted.
FACTS and DISCUSSION
On February 11, 2010, Oliverio walked into a Rite-Aid store on Anaheim Street, picked up and consumed a bag of Doritos and a 7-Up, then went to another aisle and put “some camphophenic and some... skin spray” in his pants pocket. He then walked out of the store without paying for any of the items. A store loss prevention employee saw Oliverio’s actions, and approached him outside the store. When the employee asked him to return to the store, Oliverio “struck” the employee in the face with his “palm, ” and the pair began struggling. Police arrived on the scene while Oliverio and the employee were still struggling.
In March 2010, the People filed an information charging Oliverio with one count of second degree robbery, and one count of petty theft with multiple prior theft-related convictions. The information further alleged that Oliverio had suffered seven prior convictions for which he had served a term in prison. Beginning with arraignment, Oliverio was represented at all times by privately retained counsel.
On June 1, 2010 (day “57 of 60”), a moment before Oliverio was brought into the courtroom, Oliverio’s counsel advised the trial court (Dept. SO-K): “He’s going to want to make a Marsden motion. He just told me.” Shortly thereafter, outside the presence of the prosecutor, the court listened to Oliverio’s complaints about his attorney. After listening to Oliverio, the court ruled: “I’m denying the Marsden motion, and I’m bringing the DA back in because they’re entitled to be here starting now.” At that point, Oliverio interrupted and stated: “He’s a paid attorney. Why can’t I fire him and hire a new attorney?” The court answered that the People were entitled to be present “when [a defendant] says things like that, ” and asked the prosecutor to return to the courtroom.
The minute order and reporter’s transcript from the proceedings on June 1, 2010, show the matter was discussed as a motion in accord with the procedures established in People v. Marsden (1970) 2 Cal.3d 1118. The same minute order and reporter’s transcript, and other parts of the record, shows, however, noted that Oliverio was represented at all times by privately retained counsel.
When everyone reassembled, the trial court asked Oliverio’s counsel whether he wanted “to speak on behalf of Mr. Oliverio regarding what I just heard him talking about a minute ago, hiring another attorney, [or] on his behalf say anything you want, and then I will rule whether we’re starting a trial.” Oliverio’s counsel did not directly address the issue of a new defense lawyer. Instead, he advised the court that the prosecution had just handed over “some new discovery, ” and requested a two-week continuance for a further investigation. The court and the lawyers then engaged in an extended discussion on the issue whether the material produced by the People actually constituted “new discovery, ” and on the issue of a possible defense witness not earlier disclosed to the People. At the end of the discussions, the court granted a continuance to June 14, 2010. By the time the hearing ended, Oliverio had expressly waived his speedy trial rights. There was no further discussion of a new defense lawyer.
On June 14, 2010, both sides announced ready for trial (in Dept. SO-K), and the matter was transferred to another trial courtroom (Dept. SO-9) for trial assignment. After arriving in the new courtroom, Oliverio accepted a plea agreement which included a term of seven years. Oliverio expressly waived his constitutional trial rights, pleaded no contest to both charged crimes, and admitted all seven alleged prior convictions with a prison term. Immediately upon his plea, the trial court sentenced Oliverio as noted above. The court ordered Oliverio to pay $1,400 in restitution (§ 1202.4, subd. (b)), a $30 court security fee (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).
Oliverio filed a timely notice of appeal, and we appointed appellate counsel. On January 10, 2011, Oliverio’s appointed counsel filed an opening brief raising no issues. On January 13, 2011, our court served Oliverio with a letter notifying him that he could submit any ground of appeal, argument or contention that he wished the court to consider. Oliverio has not submitted any response to our letter. We have independently reviewed the record on appeal, and find that Oliverio’s appointed counsel has fulfilled his duty, and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)
DISPOSITION
The judgment is affirmed.
We concur: FLIER, J., GRIMES, J.