Opinion
D070979
05-23-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PASTER, Defendant and Appellant.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN348579) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
Michael Paster appeals from a judgment following his guilty plea to two counts of robbery, with admissions regarding knife-use and certain priors. The trial court sentenced him to 14 years. Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
On August 5, 2015, defendant entered a gas station, approached the counter, and told the store owner and an employee, "I want all your money." They initially thought he was joking. Defendant said he was not joking, pulled out a knife, and "waived it around." The owner gave defendant "everything she had in the safe." Defendant took the money and left, but police arrested him shortly thereafter.
The People charged defendant with two counts of robbery (Pen. Code, § 211), with the allegation that he used a knife in connection with both counts (§ 12022, subd. (b)(1).) The People further alleged enhancements based on defendant having one prison prior (§§ 667.5, subd. (b), 668), one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and two strike priors (§§ 667, subd. (b)-(i), 668, 1170.12).
Undesignated statutory references will be to the Penal Code.
Defendant and the People entered into a plea bargain. Defendant agreed to plead guilty to both robbery counts, and to admit to the allegations regarding knife-use and priors. In exchange, the parties agreed defendant would serve a 14-year term in state prison.
The parties based their agreement on 14 years on the following calculation: six years on count 1 (three years, doubled due to a strike prior), plus five consecutive years for the serious felony prior, plus one consecutive year for the use of a knife, plus one consecutive year on count 2 (one-third of the middle term), plus one consecutive year for the prison prior. Defendant acknowledged he faced a potential sentence of 31 years to life.
Defendant initialed various paragraphs of his plea form, including one acknowledging his right to a trial "as to all charges, allegations and prior convictions filed against" him. (Italics added.) At the outset of the plea hearing, the court asked defendant if he had "had enough time to go over [his] case with [his] attorney . . . ." Defendant responded, "Yes." The court found defendant's waiver of his rights was "voluntary, knowing and intelligent." Accordingly, the court accepted defendant's guilty plea and set a sentencing hearing.
About four months later—before the sentencing hearing and while defendant was represented by counsel—defendant filed a handwritten request for a hearing seeking to withdraw his guilty plea. He asserted he was rushed into accepting the plea bargain, and claimed his counsel had not explained he had a right to a trial on his priors.
The court held a Marsden hearing to address defendant's complaint regarding counsel. After the hearing, the court declined to replace defense counsel. However, the court continued the sentencing hearing by one month to give defense counsel time to evaluate the merits of a potential motion to withdraw defendant's plea.
People v. Marsden (1970) 2 Cal.3d 118. --------
At the August 19, 2016 sentencing hearing, defense counsel advised the court that defendant "still wants to withdraw his plea," but counsel "discussed with [his] office that [they] will not do that motion." The court advised defendant that the decision whether to file such a motion lies within defense counsel's professional opinion and, consequently, "there is no valid motion to withdraw [defendant's] plea . . . ." The court explained that "even if" defendant had filed a valid motion, the court would find it lacked merit based on defendant's acknowledgment in his plea form that he had a right to a trial on his priors and his representation to the court at the plea hearing that he had had enough time to consider his case.
The court proceeded to sentencing, and imposed a 14-year term in state prison.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744):
"A. Was [defendant] properly advised of his constitutional rights before entering his guilty plea?"
"B. Did the trial court abuse its discretion by denying [defendant]'s motion to substitute appointed counsel?"
"C. Did the trial court err by failing to hold a hearing when [defendant] stated that he wished to withdraw his guilty plea?"
"D. Was [defendant] sentenced in accordance with the plea bargain?"
After we received counsel's brief, we gave defendant an opportunity to file a supplemental brief. He has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. Defendant has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: BENKE, Acting P. J. AARON, J.