Opinion
E053417 Super.Ct.No. RIF145359 E053451 Super.Ct.No. RIF10003760
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID KELVIN ROSS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. DAVID KELVIN ROSS, SR., Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. CASE NO. RIF145359
In case No. RIF145359, defendant was charged as follows: count 1, burglary (Pen. Code, § 459) of a Target store in Riverside on August 21, 2008; count 2, burglary (§ 459) of a Target store in Norco on August 21, 2008; and count 3, theft (§ 484) of merchandise at a Target store, with a prior theft from August 23, 2004, which resulted in a prison term (§ 666); and count 4, theft (§ 484) of merchandise at a Target store with a prior theft from August 23, 2004 which resulted in a prison term (§ 666). It was further alleged defendant served six prior prison terms within the meaning of section 667.5, subdivision (b). In support of the charges, the prosecution presented testimony at the preliminary hearing by two Target employees from Target stores in Riverside and Norco.
All further statutory references are to the Penal Code unless otherwise indicated.
Pursuant to a written plea agreement, defendant pled guilty on July 16, 2010, to all four counts and admitted all six prior convictions. Defendant was released pursuant to a "Cruz waiver" and ordered to return for sentencing on September 10, 2010. The trial court explained the Cruz waiver to defendant. The court told defendant he would remain on bail until his sentencing hearing. If he did not appear for sentencing as ordered, the court would not be bound by the plea agreement and could sentence him to a maximum of 11 years, 8 months in state prison, if he willfully failed to appear for sentencing on September 10, 2010. On September 10, 2010, defendant did not appear and the court issued a bench warrant.
People v. Cruz (1988) 44 Cal.3d 1247, 1253. "A 'Cruz waiver' gives a trial court the power to 'withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term,' if the defendant willfully fails to appear for sentencing. [Citation.]" (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.)
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While defendant was a fugitive, he "picked up a new case." As a result, the parties renegotiated a disposition to include both cases, with a total sentence of seven years on this case. The court then allowed defendant to withdraw his prior guilty plea and admissions and to enter a new plea. Under the new plea, defendant pled guilty to counts 1 and 2 and admitted four out of the six prior convictions. The remaining charges and allegations were dismissed and stricken. The court followed the plea agreement, and sentenced defendant to the upper term of three years on count 1. On count 2, the court imposed a concurrent term of three years. The court then added four, consecutive one-year terms for the prior convictions.
B. CASE NO. RIF10003760
In case No. RIF10003760, defendant was charged with petty theft of retail merchandise on August 16, 2010, at a KMart store with a prior a theft conviction (§§ 490.5, 666). Once again, six prior prison terms within the meaning of section 667.5 were alleged. The complaint was later amended to include allegations defendant had three prior theft convictions in order to satisfy that requirement in subdivision (a) of section 666. Pursuant to a written plea agreement, defendant pled guilty on March 28, 2011, to count 1 and admitted two of the nine prior convictions. He was sentenced to a total of four years in state prison. To reach the total term, the court imposed the middle term of two years on count 1. Two consecutive one-year terms were then added for the two prior prison terms defendant admitted as part of the plea agreement. The sentence in this case was imposed to run concurrently with the sentence imposed in Case No. RIF145359. All remaining counts and allegations were dismissed and stricken.
DISCUSSION
On April 21, 2011, defendant filed a notice of appeal in case No. RIF145359. On April 22, 2011, he filed a second notice of appeal citing case Nos. RIF145359 and RIF10003760. As noted above, these appeals have been consolidated. Both notices indicate the appeals were based on the sentence or other matters occurring after the plea, that do not affect the validity of the plea. Defendant did not seek or obtain a certificate of probable cause pursuant to section 1237.5.
We appointed counsel to represent defendant on appeal. Appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief.
In his supplemental brief filed September 21, 2011, defendant contends his guilty plea was obtained in violation of his right to due process. However, defendant does not state a basis for his belief. Nor did defendant seek or obtain a certificate of probable cause pursuant to section 1237.5. As a result, he cannot attack the validity of his plea in this appeal.
Defendant also requests verification as to whether he was sentenced in accordance with the plea agreements. Our review of the record indicates the court followed the plea agreements in both cases when it sentenced defendant, and the abstracts of judgment in each case match the actual terms imposed by the court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLERJ. We concur:
McKINSTER Acting P. J.
KING J.