Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YA062519 Lori Ann Fournier Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Walter Sierra appeals from a judgment entered following his guilty plea to corporal injury to a spouse, count 2 (Pen. Code, § 273.5, subd. (a)), his admission that during the commission of that offense, he inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e) and to making criminal threats, count 3 (Pen. Code, § 422), with the admission that during the commission of the offense he personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). Appellant stated he was appealing the denial of his motion to withdraw his plea, and at appellant’s request, the superior court issued a certificate of probable cause.
On March 9, 2006, pursuant to the negotiated plea, appellant waived time for sentencing for one year while incarcerated in county jail. It was further agreed appellant would be placed on formal probation for a period of five years and the court would impose and suspend a sentence of nine years in prison. Appellant also agreed to waive for all purposes all of his back time credits from the date of arrest to the date of his plea.
The prosecution explained further that appellant would be brought back to court after being in custody in county jail for one year and would then be sentenced to serve one year in the county jail, given credit for the time he served between “today and one year from today.” He would then be placed on probation for a period of four years which would mean “five years from today your probation would expire.” Additionally, he would be ordered to serve a 52-week domestic violence program, be ordered to stay away from Jeymi Sierra, and would be deported as a result of his plea.
The evidence at the preliminary hearing established that on July 17, 2005, before going to church with his wife, appellant held a knife and threatened to kill her if she was not faithful. Upon returning home that night, appellant put Ms. Sierra against the wall and started poking her in the stomach with the same knife. Appellant asked her if she was frightened and she responded that she was; she asked him why he was going to kill her as she was not doing anything to him. Daily during the previous year, appellant told her that if she was not faithful he “would rather kill [her].” Appellant poked Ms. Sierra approximately six times, and while it hurt her, it did not break the skin because she was wearing a girdle. Appellant threw Ms. Sierra into the bedroom and they struggled. After a while, she was able to open a window and call to the neighbors for help. Appellant told her to shut up and then put the knife against her neck. Appellant kept saying that “the voice was telling him to kill [her].” When Ms. Sierra tried to take the knife away, she cut the top part of four fingers on her right hand. Ms. Sierra escaped by jumping out of the bedroom window. In doing so, she hit her head on a cement wall and suffered a broken clavicle. Ms. Sierra was hospitalized for her injuries and at the time of the hearing continued to suffer from dizziness.
Appellant’s Marsden motions (People v. Marsden (1970) 2 Cal.3d 118) were heard and denied.
On March 9, 2006, a protective order pursuant to Penal Code section 136.2, set to expire on March 9, 2009, was signed, filed and served on appellant.
On March 8, 2007, appellant returned to court for sentencing. It was explained that he would be sentenced to prison for nine years, suspended, placed on five years’ formal probation and ordered to serve one year in county jail with credit for time served. On this same date, appellant asked to “withdraw the deal and continue with [the] case.” The matter was continued to April 11, 2007 for the motion to withdraw the plea and/or probation and sentencing.
On April 11, 2007, appellant appeared in court and his counsel made an oral motion to withdraw his plea. It was stipulated that the reasons given “would have been presented in an affidavit form under penalty of perjury signed by [appellant] had [they] been able to do that.” Defense counsel stated appellant wished to withdraw his plea in that “he was innocent of the charges.” Secondarily, appellant felt a time pressure to make a decision and had not been given enough time to consider the offer. Additionally, appellant claimed he was not physically or mentally ready to accept an offer because there had been problems in county jail.
The court denied appellant’s motion to withdraw his plea, finding appellant had signed and initialed the guilty plea form, explaining his rights and the consequences of his plea. The court stated appellant had to make a choice about avoiding a life sentence and that the court believed defense counsel fully informed appellant of the consequences. Thereafter, the court imposed the negotiated sentence.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
We attempted on October 2, 2007 to advise appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. The notice, however, was returned to this court as undeliverable with no forwarding address. We have been advised by appellate counsel that he does not have a current address for appellant and believes appellant may have been deported. Additionally, the California Appellate Project has been unsuccessful in contacting appellant.
We have examined the entire record and are satisfied that no arguable issues exist. The trial court did not abuse its discretion in denying appellant’s motion to withdraw his plea. (See People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.