Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09WF1608, M. Marc Kelly, Judge.
Tres Donald Page in pro. per.; Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Tres Donald Page was charged with numerous felonies arising from a physical fight with family members on July 4, 2009. He faced up to 25 years four months in prison.
On June 2, 2010, the court was informed that the victim family members did not want to testify. The People made an offer to defendant and defendant advised the court he wanted to change his plea. The court stated: “First of all, the People indicated that they were willing to offer 14 years and dismiss both strikes if the defendant was willing to accept the plea....” Apparently speaking directly to defendant, the court then said: “Okay. And your attorney asked the court if the court would be willing to make an offer on the case. I did not know anything about you. I did not know anything about the case other than what was told to me. I would not be comfortable dismissing any strikes unless I had a full and complete report, probation sentencing report that gave me a detailed history of your background, your family upbringing, your criminal history, your job status, things of that nature, everything that I would take a look at, including receiving any input from the victims in the case. You can make a statement that I can review, your attorney and the district attorney as well. [¶] And so it kind of gives me a general — a pretty broad picture, scope so I can give my own evaluation, what I feel is appropriate in the case.” The court asked defendant whether he understood, and defendant said he did. At that point, the court said it was willing to offer a “lid” of 14 years, and explained: “Meaning that after I evaluate everything if I feel that you’re not deserving of a sentence of 14 years or less, then you would be entitled to withdraw your plea. You would be right back where we are, square one. You can go to jury trial on the matter.” The court cautioned defendant: “However, if you plead guilty to me you could be sentenced — at that sentencing time, once I review everything, you could be sentenced to 14 years and you cannot [withdraw] your plea. I can determine, you know, I feel this is a fair sentence of 14 years and that’s what I am going to impose, so — and there is a very real possibility that you could get that 14 year sentence. [¶] You fully understand that?” Defendant said he had discussed it with his attorney and that he understood. The court continued explaining the situation to defendant, reiterating its cautions. Defendant had no questions of the court.
Shortly thereafter, defendant pled guilty to numerous felony charges and admitted several enhancements and his prior crimes. The court found defendant “intelligently and voluntarily waived his legal and constitutional rights to a jury trial, to confront and examine witnesses and to remain silent.” Defendant offered the following as a factual basis for his plea: “In Orange County, California, on 7-4-09, I did willfully & unlawfully commit a battery & inflicted serious bodily injury on Jeffrey P. & Darrell P. I did willfully & unlawfully threaten to kill Joan P., with the specific intent that the statement be taken as a threat, and the statement was unequivocal, unconditional, & immediate to convey to Joan P. the immediate prospect of execution of the threat, causing Joan P. to reasonably fear for her safety;... under circumstances & condition likely to produce great bodily harm & death, I did willfully & unlawfully permit the suffering of Darrell P., who I knew to be an adult over 65 years old. I did willfully & unlawfully commit an assault upon the person of Darrell P. & Jeffrey P. by means of force likely to produce great bodily injuries & I did in fact personally inflict great bodily injury on both Darrell P. & Jeffrey P. who were not accomplices to any of the crimes I committed.”
During the change of plea hearing, the court summed up the charges and remarked: “So looks like five strike crimes that you’re pleading guilty to and then six total felony crimes” and then asked defendant how he plead, and defendant replied, “Guilty.” The court went over the enhancements and priors separately with defendant, and defendant admitted each.
Three months later, on September 3, 2010, the court exercised its discretion and struck two prior crimes for sentencing purposes, stating that if the priors are not stricken, “the mandated punishment under the Three Strikes law will cause a severe, unreasonable and disproportionate detriment to the defendant.” For the one remaining strike offense, the court doubled defendant’s punishment. The court sentenced defendant to a total of 14 years in state prison.
During the two hearings, and throughout the court’s personal interaction with defendant, defendant never once informed the court that anyone had ever promised him anything other than a maximum sentence of 14 years in prison or that his lawyer had advised him not to accept an offer of less than 14 years in prison. After the court announced its sentence, the court stated: “It’s a harsh sentence and I know your attorney has gone to bat on your behalf, but the court feels the 14 year sentence is appropriate. I feel that the mercy that you were shown in large part because of your family members that have supported you and the other things that I talked about put you in a position where you don’t have to serve the rest of your life in prison and you’re going to get a determinate prison — [¶] So it’s a bitter pill to swallow.” It was at that point, defendant stated: “I [would] rather take it to trial.” The court told defendant: “Well, that is not going to happen, sir.”
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Citing to Anders v. California (1967) 386 U.S. 738, counsel provides an “Anders Statement.” In it, he cites a few cases relating to ineffective assistance of counsel, but does not describe how counsel might have been ineffective in this case. Defendant was given 30 days to file written argument in defendant’s own behalf.
Defendant filed a letter brief in which he states that prior to changing his plea on June 2, 2010, he was “offered a ‘deal’ of 10-years in state prison with halftime eligibility, though my Public Defender advised me to turn it down based on the Public Defender’s assurance that he could get a better ‘deal’....”
To the extent defendant contends he received ineffective assistance of counsel, the record shows that counsel had a reasonable basis for recommending defendant accept the offer and that defendant was permitted adequate time to confer with counsel. The trial court was meticulous in determining that defendant understood and voluntarily changed his plea in exchange for a sentence of not more than 14 years in prison. Defendant has not established on the present record that he received ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Ledesma (1987) 43 Cal.3d 171, 215–216.)
We have carefully examined the record and found no other arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) We conclude from this review that defendant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P.J., BEDSWORTH, J.