Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC58654A/SC51238A
NEEDHAM, J.
Billie Ray Pratt (Pratt) appeals from a judgment entered following his plea of no contest. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
Pratt was charged in an information with possession of a firearm by a convicted felon. (Pen. Code, § 12021, subd. (a)(1).) The information further alleged seven prior convictions (Pen. Code, § 1203, subd. (e)(4)) and three prior prison terms (Pen. Code, § 667.5, subd. (b)). Pratt was represented by counsel from at least the preliminary hearing in May 2005 through disposition.
A. Preliminary Hearing
East Palo Alto Police Officer Charles Hines testified that on May 5, 2005, at about 11:00 p.m., he and other officers were dispatched to the residence of Pratt and his mother, on a report of a man inside with a gun. Officer Hines looked in a window on the side of the house and saw Pratt pacing back and forth, holding what appeared to be a small-caliber revolver. Officer Hines called Officer Adair to where he was standing, and Officer Adair said that he saw the gun too. Officer Adair returned to a position by the front door. The next thing Hines knew, Adair had fired a shot because Pratt approached the door with a gun in his hand.
Officer Paul Norris arrived at the residence and spoke to Pratt’s sister, Bertha Benton, outside the house while Pratt was still inside. Benton told the officer that she received a telephone call from her mother saying that Pratt was “fussing” and had a gun, and that she heard a gunshot and called the police. While Benton was speaking to Officer Norris, she received a telephone call from Pratt. The officer spoke to Pratt and told him that if he came out of the residence he would not be hurt. Pratt complied, and he was arrested without further incident.
Benton asked Pratt where the gun was. He responded something to the effect that he threw it in the backyard. Police conducted a search but did not find a gun.
B. Commencement of Trial and Entry of No Contest Plea
On November 28, 2005, Pratt admitted all the prior conviction allegations and admitted he was ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4).
In motions in limine, the court ruled that Pratt could be impeached (with his prior convictions) if he testified. The court also ruled that Pratt’s sister, whom the police had unsuccessfully tried to serve with a subpoena, was unavailable as a witness and that a tape-recording of her 911 call, telling the police that her brother Billie “has a gun in with my [m]other,” could be admitted into evidence.
Before jury selection, the court told Pratt that, if he pleaded “no contest” to the charge (possession of a firearm by a felon), he would be sentenced to the middle term of two years and, in a matter in which he was on Proposition 36 probation, would receive a concurrent two-year term. The court stated: “And I would just indicate to you, Mr. Pratt, under the circumstances, understand that I have indicated to your counsel, Mr. McElroy, that if you wanted to dispose of the matter short of the jury trial, under the circumstances, I would be prepared to accept the plea of no contest to the charge, 12021. And my indication would be I would sentence you to the mid term of two years. You have whatever credits that you have coming in that regard. [¶] As it relates to the probation violation matter, if you were to admit that, again, I would sentence you to the mid term, two years. [¶] Those sentences run concurrent with -- the same time with one another. And I’d give you whatever credits you have on the probation matter, which I assume are quite a few. [¶] And so that would be my position. [¶] If we go to trial, once the jury is sworn and we start with the prosecution of the -- the arguments or the opening statements, then that offer is no longer available and we’ll go to trial. And if you are convicted, then we’ll see where it goes.”
Pratt’s counsel requested and received a recess to speak with Pratt. After the recess, the court indicated to Pratt that he had received from Pratt’s attorney a waiver of rights form indicating that he was prepared to enter a plea of no contest and admit the three prison priors and the probation ineligibility allegation, as well as the violation of probation (Plea Form). Pratt acknowledged that was correct. Pratt confirmed to the court that he had had an opportunity to read and review the Plea Form and discuss it with counsel, that he understood the form and signed it, and he had no questions for the court.
In the Plea Form, Pratt indicated his intention to change his plea to nolo contendere to the charge of possession of a firearm while a felon, and to admit the probation ineligibility priors and prior prison terms. He confirmed that counsel had advised him of his constitutional rights and that he was changing his plea freely and voluntarily. He also indicated that he understood the maximum sentence would be six years eight months. The Plea Form indicated a “3 year prison top[,] refer to probation for report . . . .” Pratt and his attorney signed the Plea Form.
It appears from the Plea Form that Pratt’s attorney initially wrote “2 top/bottom refer to probation for report . . . .” and, at some point, scratched that out and wrote “3 year prison top refer to probation for report . . . .” (Italics added.)
The court advised Pratt that he faced a maximum sentence of six years: three years for the violation of Penal Code section 12021 and one year for each of the three prior prison terms. When Pratt questioned the six years, the court clarified that six years would be the maximum, but the court would refer the matter to the probation department and, even if the court believed that state prison rather than probation was appropriate, the sentence would be three years or less. Pratt responded, “All right,” and stated that he understood. The court also noted there was a possibility of a probationary sentence. After the court advised Pratt of his legal and constitutional rights and consequences of his plea and admissions, Pratt confirmed that he was entering his pleas freely and voluntarily.
Pratt then pled no contest to possession of a firearm as a felon. He also admitted probation ineligibility, the seven alleged prior felony convictions, the three alleged prior prison terms, and his violation of probation.
The court found that Pratt made a knowing and intelligent waiver of his rights and the plea was freely and voluntarily given.
C. Probation Report and Sentencing Memorandum
The probation department’s report recommended against probation. A number of letters submitted from family and friends praised Pratt for his personal qualities and for the care he had provided to his father, uncle, and mother.
Pratt’s attorney noted in a sentencing memorandum that Pratt’s criminal history did not start until he was 30 years old. Counsel believed that Pratt had serious mental and physical health problems for which he “desperately needed” but had not received help. Counsel argued that Pratt was in a “delusional psychosis episode” at the time of the offense, noting that Officer Hines had observed Pratt talking to furniture.
The probation officer also noted that Pratt had a happy childhood, graduated from high school, attended a community college briefly, left school to work to support two children, and turned to drugs and alcohol “to escape the emotional pain he felt subsequent to his father’s death [which] led to criminal activity, and the defendant said . . . he gave up on following the positive path he had been on regarding his educational and employment pursuits.”
D. Sentence
Pratt was sentenced on January 13, 2006. The court noted that it had reviewed the probation report as well as sentencing memoranda submitted by the defense and the prosecution. Noting Pratt’s poor performance on probation, the court denied probation. The court sentenced Pratt to the middle two-year term for possession of a firearm by a felon, and sentenced him to a concurrent low-term of 16 months in the case in which he was on probation. Pratt was granted over a year of credit for time served. The three prior prison terms (see Pen. Code, § 667.5, subd. (b)) were “stayed or stricken” for sentencing purposes.
E. Appeal
Pratt filed a notice of appeal from the judgment in pro per. On the notice of appeal, Pratt wrote that he was appealing because he “was put in a catch twenty two.” In a handwritten attachment, not set forth under penalty of perjury, Pratt stated that he had told his lawyer to “put a 995 motion in” because his case was based on hearsay and that his “speedy Rights” were violated because his attorney convinced him to waive time to obtain a background check on a police officer. In addition, Pratt complained that the judge put him “in a cross,” and in a “no win situation” by saying that if he did not “take the deal” he would violate his Proposition 36 probation, while “proposition thirty six” told him that they would reinstate him if he “beat the case.”
The record does not indicate that Pratt requested or obtained a certificate of probable cause under Penal Code section 1237.5.
II. DISCUSSION
Pratt’s appellate counsel has represented that he has advised Pratt of his opportunity to file a supplementary brief and to request the court to relieve counsel from representation if he so desires. This court has not received such a request or supplemental written argument from appellant.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., GEMELLO, J.