Opinion
F051435
5-22-2007
THE PEOPLE, Plaintiff and Respondent, v. GLENN ELLIOT RITCHIE, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Levy, J., and Gomes, J.
On April 6, 2006, appellant, Glenn Elliot Ritchie, admitted a felony allegation in an information that he falsely represented himself to be Lyle Ritchie (Pen. Code, § 529). Appellant admitted allegations that he had a prior serious felony conviction within the meaning of the three strikes law and he had served a prior prison term within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise indicated.
On March 20, 2006, appellant waived his right to a preliminary hearing.
Prior to taking appellants change of plea, the court advised appellant of the consequences of his plea, including the fact that he faced a maximum prison term of 16 months, 2 years, or 3 years which could be doubled because of the three strikes law to 32 months, 4 years, or 6 years. Appellant was informed that his custody credits would be limited to 20 percent. The court told appellant he would have to pay a restitution fine. The court advised appellant of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The parties stipulated there was a factual basis for appellants plea based on the police report. The court accepted appellants plea.
At 10:30 p.m. on December 6, 2005, a Hanford police officer conducted a routine traffic stop on the vehicle appellant was driving. Appellant identified himself as Lyle Ritchie and told the officer he had recently been released from federal parole. The officer noticed appellants speech was rapid and his eyes were dilated with lighting. The officer asked appellant if he had used methamphetamine. Appellant said he had recently smoked marijuana. Appellant was arrested for being under the influence of a controlled substance and transported to jail. On January 4, 2006, another officer contacted Lyle Ritchie and learned he was not the person arrested on December 6, 2005. A fingerprint scan revealed that appellant was Glenn Ritchie.
After a recess, the prosecutor informed the court she had discovered appellant had a second serious felony conviction within the meaning of the three strikes law that had not been alleged. The court informed the prosecutor that she would have to file an amended information alleging the new prior felony. On April 14, 2006, the prosecutor filed a motion to amend the information. On April 27, 2006, the parties continued the Peoples motion. Appellant waived time for sentencing. The court heard the Peoples motion to amend the information to include the additional allegation, noting that appellant would have the right to withdraw his plea.
On August 3, 2006, appellants counsel made a motion for the court to dismiss one or both of the prior serious felony allegations. The People indicated they would not oppose appellants request for the court to dismiss the prior serious felony conviction from 1990. The court advised appellant of his constitutional rights concerning the amended allegation and informed appellant of his right to withdraw his plea. The court also advised appellant of the consequences of admitting the allegation, including that it would count as a second strike under the three strikes law. The appellant stated he would admit the amended allegation and leave his plea intact and did so.
At the sentencing hearing on August 18, 2006, appellants counsel argued the court should strike both prior serious allegations. The court struck the prior serious felony allegation from appellants 1990 conviction. The court selected the midterm of two years, doubled it to four years pursuant to the three strikes law, and added a consecutive year for the prior prison term enhancement for a total prison term of five years. The court imposed a restitution fine and awarded appellant applicable custody credits. Appellant did not obtain a certificate of probable cause and filed a timely notice of appeal.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised he could file his own brief with this court. On January 16, 2007, we invited appellant to submit a letter stating any grounds on appeal he wished this court to consider. Appellant replied with a one-page letter requesting that we consider whether his offense, which is a wobbler, should have been reduced to a misdemeanor. Appellant further asks whether it would have been more appropriate for him to be charged with a violation of section 148.9 for giving false information to a peace officer.
The answer to appellants second question is that the prosecution of criminal offenses in California is the sole responsibility of the public prosecutor who ordinarily has the sole discretion to determine whom to charge, what charges to file and pursue and what punishment to seek. The district attorney of each county is the public prosecutor vested with the power to conduct all prosecutions for public offenses within the county, subject to supervision from the Attorney General. The district attorney of each county independently exercises all the executive branchs discretionary powers in initiating and conducting criminal proceedings. (People v. Eubanks (1996) 14 Cal.4th 580, 588-589.) Appellant falsely represented himself and the trial court established a factual basis for his plea to a violation of section 529. A guilty plea is, for most purposes, the legal equivalent of a jurys guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict. The plea is deemed to constitute an admission of every element of the offense charged. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748; People v. Suite (1980) 101 Cal.App.3d 680, 689.) Appellants plea constituted an admission of each element of the offense charged.
Appellant further questions why a wobbler offense was treated as a felony rather than a misdemeanor. Trial courts exercise sentencing discretion in determining whether to strike prior serious felony allegations made under the three strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; also see Manduley v. Superior Court (2002) 27 Cal.4th 537, 554.) Trial courts further exercise discretion under section 17, subdivision (b) to determine how a wobbler offense will be punished. (People v. Camarillo (2000) 84 Cal.App.4th 1386, 1391.) We find no error in the trial courts exercise of its sentencing discretion either with regard to the three strikes law or pursuant to section 17, subdivision (b).
The trial court carefully advised appellant of the consequences of his plea and his constitutional rights. The parties stipulated to a factual basis for appellants plea. There was no lid placed on appellants sentence, but he received only the midterm. We find no error in the trial courts advisement of rights, the appellants waiver of rights and his admission of the amended allegations, or in the trial courts imposition of sentence.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual arguments.
DISPOSITION
Appellants request for new appellate counsel, filed May 18, 2007, is denied. The judgment is affirmed.