Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR201517
Kline, P.J.
Appellant Anthony Padilla appeals from a judgment of conviction of two counts of residential robbery (Pen. Code, § 211) entered upon his pleas of no contest. His court-appointed attorney has filed a brief raising no legal issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. The trial court denied appellant’s request for a certificate of probable cause, but counsel represents that the appeal raises sentencing issues that arose after entry of the pleas and do not affect the validity of the pleas, and therefore is authorized by California Rules of Court, rule 8.304(b) of the California Rules of Court.
All subsequent statutory references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
At about 6:30 p.m. on November 12, 2008, Vallejo police officers responded to a residence at 1002 Thelma Street in Vallejo regarding a home invasion robbery that had just taken place. Brian Heald, one of the victims, told the officers that the robbers had just left in a dark sedan, similar to a Honda. Heald said he was standing in the front yard talking on the phone when a vehicle made a quick U-turn and parked in front of the house. The driver, later identified as appellant, exited the vehicle, showed Heald a large semi-automatic pistol, and ordered him into the house. Appellant and his male companion followed and encountered Nicole McCraven and her three minor children. They were all ordered to lie face down on the floor and appellant’s companion stood over Heald with a baton. The two men demanded the victims’ “straps and money” and demanded that a safe in the house be opened. Heald stated that neither he nor McCraven had the combination. Appellant then took Heald’s cell phone and McCraven’s purse, cell phone and keys. Appellant then ordered Heald, McCraven and the three children into a bathroom and instructed them to remain there. Appellant and his companion then fled.
Shortly thereafter, Mitchell Branch, McCraven’s “boyfriend/fiancé” who resided in the house and had been talking on the phone with Heald when the robbers arrived, returned. Branch told the police that approximately $4,000 in cash had been removed from the house, as had a 14-karat gold chain weighing 148 grams, a rope necklace weighing 88 to 95 grams, a ring, a gold bracelet, and a digital camera. None of the victims knew the men who robbed them or why their house had been targeted.
On November 28, a little more than two weeks later, police officers observed and pursued a black four-door Honda that fit the description of the car used in the robbery. The driver, appellant, was taken into custody. Nicole McCraven was brought to the scene and positively identified appellant as one of the two robbers.
Appellant, who waived the reading of his Miranda rights, said he knew he was wanted by parole officers, which is why he fled the police, and that he had begun using methamphetamine and was having difficulty staying clean. Though he initially denied owning a gun, he later admitted recently purchasing one and said he threw it from his car while being chased by the police. He also admitted being a member of the Surenos gang. When shown photos of the victims of the home invasion robbery, appellant initially denied knowing them or any involvement in the robbery.
Miranda v. Arizona (1966) 384 U.S. 436.
During a search of appellant’s mother’s home, where he lived, the police found a cell phone that Nicole McCraven identified as the one taken from her during the robbery. A photo lineup was shown McCraven’s three children and all of them positively identified appellant as one of the two robbers.
After appellant was arrested and booked on March 16, 2009, he refused to discuss the crime, stating that he had never seen any of the victims or been in their house, and said he knew nothing about a second suspect. However, appellant subsequently allowed that he had been using methamphetamine and his addiction to it may have led him to commit the robbery, denying it was gang related. Appellant gave the police a written statement in which, among other things, he admitted he participated in the robbery because of “needing money to get high” and declared his feeling of “remorse towards these people every time I think of this crime.”
Appellant was on April 13, 2009 charged by amended complaint with six felony offenses: kidnapping to commit robbery (§ 209, subd. (a)), two counts of first degree residential robbery (§ 211), first degree burglary with a person present (§ 459), child endangerment (§ 273), and possession of a firearm by a felon (§ 12021, subd. (a)). Before the preliminary hearing, appellant filed two Marsden motions, the second of which was granted. New counsel moved to continue the hearing in order that an in-person line-up could first be conducted. Following the line-up, a preliminary hearing was held and appellant was bound over for trial. By an information filed on October 23, 2009, appellant was charged with seven offenses: the six earlier set forth in the complaint, and a second count of child endangerment. Enhancements for personal use of a firearm were alleged as to all of the charged offenses except the possession of a firearm. Two prior prison term enhancements were also alleged (§ 667.5).
People v. Marsden (1970) 2 Cal.3d 118.
The defense moved to set aside the kidnap for robbery charge on the ground that any movement of a victim was merely incidental to the robbery. The motion was denied on January 5, 2010, and the case was set for trial.
On June 18, 2010, appellant executed a written plea waiver form and entered no contest pleas to the two counts of first degree residential robbery and admitted the attendant enhancements for prior prison term and use of a firearm. The district attorney stated that the plea agreement was entered into with the consent of the adult victims, who wished to spare their children the ordeal of trial. The remaining charges were dismissed with a Harvey waiver, and an Arbuckle waiver was entered. The negotiated plea called for a total prison term of 18 years, with credits limited to 15 percent.
People v. Harvey (1979) 25 Cal.3d 754.
People v. Arbuckle (1978) 22 Cal.3d 749.
Counsel noted that appellant was already serving as prison sentence in another case (Super. Ct., Solano County, No. VCR200871), and an eight-month consecutive term would be imposed for that case.
By letter dated July 8, 2010, defense counsel advised the court that appellant “is going to request to withdraw his plea on the basis of ineffective assistance of counsel and I will therefore be requesting that the Court appoint new counsel to review the merits of the request.” The court ordered a transcript of the hearing at which the plea was entered and appointed counsel to conduct a review of those proceedings. On August 3, 2010, after conducting the review, counsel informed the court that, as stated in a minute order, “after speaking with the defendant and researching the issue, there is no motion to withdraw the plea.”
At the August 5, 2010 sentencing hearing, the court and the parties agreed to strike the two prior prison term enhancements and stipulated to a state prison term of 16 years. The court imposed the upper term of six years on the robbery charged in Count 2 of the information, with a consecutive 10 years for the personal use of a firearm under section 12022.53, subdivision (b). Concurrent six- and 10-year terms were imposed on the identical robbery charge in Count 3. Credits of 62 days for time served and 9 days for good conduct were awarded, for a total of 71 days presentence custody credits. The court ordered appellant to pay a restitution fine of $3,200 (§ 1202.4, subd. (b)), and ordered but suspended a similar fine unless appellant’s parole were revoked (§ 1202.45).
Appellant’s request for a certificate of probable cause was denied on September 21, 2010, and appellant filed a timely notice of appeal, on both sentencing and certificate grounds, the next day.
On February 28, 2010, appellant personally filed a one-page supplemental brief in which he makes a variety of factual assertions; claims defense counsel William Pendergast provided ineffective assistance of counsel; maintains there is no evidence he was the person who brandished the gun, and the firearm enhancement was therefore unjustified; claims he should be permitted to withdraw his plea because the victims’ testimony was “coached” by detectives, which forced him to enter his plea in order to avoid a life sentence; claims he did not understand his plea when he entered it; claims he was improperly denied credits; and claims the restitution order was improper because “restitution was denied by the victims.”
DISCUSSION
Though appellant checked the box on his notice of appeal indicating that “[t]his appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea, ” he also checked the box stating that “[t]his appeal challenges the validity of the plea or admission.” However, where, as here, a defendant’s notice of appeal contains the statement that the appeal is based on grounds that arose after entry of the plea and do not affect the plea’s validity, the defendant must obtain a certificate of probable cause prescribed in section 1237.5. (Cal. Rules of Court, rule 8.304(b)(5).) Although appellant checked the box on his notice of appeal indicating that “[t]his appeal challenges the validity of the plea or admission, ” he did not obtain a certificate of probable cause.
Nevertheless, our record includes and we have reviewed the transcript of the June 18, 2010 hearing at which appellant entered his plea, as well as the written waiver of constitutional rights and declaration in support of appellant’s motion to change his plea that he signed on the same date. The admonitions given appellant at the time he entered his plea fully conformed with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and his waiver of constitutional rights was voluntary and knowing. Appellant acknowledged to the court that he understood all of the rights he was giving up, and acknowledged in his written waiver that he had been advised of and understood those rights, and the court found that appellant “freely and voluntarily entered [his plea] with a knowing and understanding waiver of his rights.”
The record provides a factual basis for the plea.
Nothing in the record suggests appellant was mentally incompetent, and he was at all times represented by competent counsel who protected his rights and interests.
The sentence imposed was consistent with the plea and authorized by law.
Our independent review having revealed no arguable issues that require further briefing. The judgment imposed, which includes the sentence, is affirmed.
We concur: Haerle, J., Lambden, J.