Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB800388, William Jefferson Powell IV, Judge.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant, Robert Charles Rivers, was sentenced to state prison pursuant to a negotiated plea agreement providing for a stipulated term of 4 years. His notice of appeal challenges both the sentence and the guilty plea, but his request for a certificate of probable case was denied.
Background
On July 31, 2008, in an Applebee’s restaurant, the victim was working as a waitress when her husband, the defendant, approached her and whispered in her ear that he would kill her. The victim asked defendant to leave because she feared she would be terminated; there had been another incident the evening before. Once outside, defendant again threatened to kill her and struck her three times in the face. Defendant subsequently left the premises.
Later that evening, police contacted defendant at his residence, in the course of investigating the incident. As the officers approached the residence, they saw defendant walking around outside and they identified themselves. Defendant looked at the officers, got into his vehicle, and drove towards one of the officers. Despite orders to stop, defendant accelerated the vehicle and struck one of the officers in the chest. The officer backed up out of defendant’s way, and defendant sped away. Defendant was later arrested when his vehicle was involved in a collision, disabling the vehicle.
Defendant was ultimately charged with making criminal threats (Pen. Code, § 422, count 1), corporal injury to a spouse (§ 273.5, subd. (a), count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 3), battery upon a peace officer (§ 243, subd, (b), count 4), and resisting arrest (§ 148, subd. (a)(1) [misdemeanor], count 5). It was further alleged that defendant had four prior felony convictions for which he had served separate prison terms. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
On October 7, 2008, criminal proceedings were suspended when the court expressed a doubt as to defendant’s competence to stand trial. (§ 1368, et seq.) However, after considering the report of medical commission appointed to evaluate defendant, the court found defendant was competent. On March 3, 2009, defendant entered into a plea bargain. Pursuant to the agreement, the prosecution amended the information to change the charge in count 3 to allege an assault by means likely to produce great bodily injury on a peace officer (§ 245, subd. (c)). In return for his plea of guilty to count 1, criminal threats, and the newly amended count 3, assault on a peace officer by means likely to produce great bodily injury, the agreement provided for a stipulated sentence of 4 years in state prison on count 3, with a concurrent term for count 1. Although defense counsel signed the change of plea form, he orally indicated he did not believe the plea bargain was in defendant’s best interests because he would have two strikes on his record.
Defendant proceeded to enter his guilty plea, waived his right to a probation report, and requested immediate sentencing. Pursuant to the plea agreement, the court denied probation, and committed defendant to state prison for the middle term of 4 years on count 3, which was designated the principal term. The court imposed a middle term sentence of 2 years for count 1 and ordered that term to run concurrent. It then dismissed the balance of the charges. On March 30, 2009, defendant appealed.
Discussion
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979), 25 Cal.3d 436 and Anders v. California (1967), 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, and he has submitted a letter brief regarding his incompetence to stand trial. Defendant made this same assertion in his handwritten notice of appeal, filed on May 12, 2009, to the effect that his counsel was ineffective because he did not request a competence evaluation based on developmental disability.
Pursuant to People v. Kelly (2006), 40 Cal.4th 106, we have independently reviewed the record for potential error. Because the notice of appeal refers to a challenge to the sentence, we note that a stipulated sentence cannot be challenged on appeal without a certificate of probable cause. The sentence term is an integral part of the plea agreement and such a challenge is actually an attack on the plea itself. (People v. Panizzon (1996), 13 Cal.4th 68, 79.)
Appellant’s claim that he was deprived of effective assistance of counsel cannot be considered in this appeal because it refers to evidence which is outside the record on appeal. (People v. Jones (2003), 30 Cal.4th 1084, 1105; People v. Pope (1979), 23 Cal.3d 412, 426.) Defendant asserts that his counsel abandoned the defense that his developmental disability rendered him incompetent but this assertion is not supported by any evidence in the record that he suffered from a developmental disability. Absent a showing on the record, we find no constitutional violation. (Strickland v. Washington (1984), 466 U.S. 668, 698.) In any event, the standard for determining competency to stand trial is statutorily limited to a determination of whether a defendant understands the nature of the proceedings and is capable of assisting in his defense. (§§ 1368, 1369, subd. (a).) Competence is not limited to any particular mental defect or disorder. If defendant’s developmental disability affected his ability to understand the nature of the proceedings or his ability to cooperate with his counsel, the medical commission would have included those findings in its report. Because there is no evidence in the record demonstrating defendant suffered from any developmental disability, there is no showing that counsel was ineffective for failing to assert that ground of incompetence.
We also reviewed the record to determine if defendant was properly admonished of the rights he would be waiving and the consequences he would receive from his guilty plea. The record reveals defendant was advised of the constitutional rights he would be waiving in writing, that he informed the court he understood his rights, and that no one was forcing him to plead guilty. Thus, his plea was entered knowingly, intelligently, and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238, 243, fn. 5 [89 S.Ct.1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122, 130.) Regarding the propriety of counsel’s waiver of defendant’s trial rights vis-à-vis the competency proceeding, counsel may waive the right to a jury trial in a competency proceeding, and the court need not advise the defendant of that right. (People v. Masterson (1994), 8 Cal.4th 965, 973.)
We have completed our independent review of the record and find no arguable issues.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.