Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB46748, John N. Martin, Judge.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Factual and Procedural Background
Defendant pled guilty to eight counts of second degree vehicular burglary. (Pen. Code, § 459.) Thereafter, he executed a Vargas waiver which permitted his release from custody as long as he appeared for sentencing and violated no law in the interim. If he abided by the terms of his agreement, he would be permitted to withdraw his plea on seven counts and would receive two years incarceration on the remaining count. However, if he violated the terms of this agreement, he would be sentenced to seven years eight months. Defendant failed to appear at the sentencing hearing. Several months thereafter, police arrested defendant on an apparent charge of drunk driving. Without holding a hearing regarding whether defendant had violated the terms of his Vargas waiver, the court imposed the seven year eight month sentence contained in his plea agreement. Defendant appealed and this court remanded the matter to the trial court with directions that the court appoint defendant counsel and hold a hearing to determine whether he in fact violated the terms of his Vargas waiver.
We take judicial notice of our opinion in the earlier appeal (People v. Murphy (December 18, 2006, E039236) [nonpub. opn.]). (Evid. Code, §§ 452, 459.)
People v. Vargas (1990) 223 Cal.App.3d 1107.
On remand, defendant filed a motion seeking to withdraw his plea. Defendant asserted that at the original sentencing hearing he had requested that he be permitted to withdraw his plea and be allowed to put his attorney on the stand in support of that request. A conflict attorney appointed for defendant to investigate grounds for withdrawing the plea advised the court that there were no legal grounds for doing so. Defendant asserted that, at the time of sentencing, the court should have held a Marsden hearing regarding defense counsel’s alleged deficient performance at the plea hearing. Defendant raised no issue on his first appeal regarding the failure of the court to hold a Marsden hearing or to grant his request to withdraw his plea. The court, on remand, repeatedly advised defendant that its jurisdiction was specifically limited to holding a hearing regarding defendant’s alleged Vargas violation as directed by this court. Defendant admitted that he violated the terms of his Vargas waiver when the court refused to hear his other contentions.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant appealed, and upon his request this court appointed counsel to represent him. 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 potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he had not done.
We have now concluded our independent review of the record and find no arguable issues.
Disposition
The judgment is affirmed.
We concur: GAUT J., MILLER J.