Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest, Judge, Super.Ct.No. FSB059829
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant pled guilty to second degree burglary (Pen. Code, § 459) and admitting having previously suffered a strike conviction. (§ 667, subds. (b)-(i).) As part of his plea bargain, he waived his right to appeal. He was sentenced to the agreed-to term of 6 years in prison. There is no certificate of probable cause in the record before us.
All further statutory references are to the Penal Code unless otherwise indicated.
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 the defendant an opportunity to file a personal supplemental brief, which has been read and considered.
Facts
The parties stipulated that the complaint and/or police reports attached to or incorporated in it was the factual basis for the plea. No police reports are part of the record before us. The complaint alleges that defendant entered a rental home on or about January 6, 2007 with the intent to commit larceny or any felony.
1. Proceedings Below
At the beginning of the hearing during which defendant’s plea was taken, when the trial court thought that defendant was also pleading guilty to possession of a controlled substance, it said to him, “I’m going to sentence you today to the upper term on Count 1 [for the burglary] of three years. It will be doubled to six years. Consecutive to that will be one-third the mid term of . . . two years [for the possession], [which is] eight months doubled, because of the strike, for a total time of seven years, four months. [¶] There will be a stay of execution on this sentence. You will be released on what is called a Vargas [w]aiver. And you will be ordered to come back on . . . February 2nd, ’07 at 8:30 a.m. in Department 23. . . . If you come back on that date, on time . . . [¶] . . . [¶] . . . and you don’t violate any laws between now and then and submit to Bravo search terms, then I will recall the sentence. Instead of doing seven years, four months, you will do two years, eight months. . . . [¶] . . . [¶] And the People would dismiss the other count against you. [T]hat would be Count 2 . . . .” Defendant acknowledged that this was his understanding of the plea bargain and he agreed to it.
Later, the trial court realized that the possession had been charged as a misdemeanor. It told defendant that the People were willing to dismiss that count and it struck it. The trial court then told defendant, “[T]he plea agreement has been modified as follows: I’m going to sentence you, today, to six years. I’m going to cross out [on the change of plea form] where it says one-third doubled on . . . the . . . count [charging possession]. The total time will be six years, if you mess up. If you don’t mess up, you still get the two years, eight months.” When defendant said he was hoping to get a reduction in that, the trial court said, “No. No. You agree to that modification? It’s to your benefit.” Both defendant and his attorney agreed to it. Defendant waived his right to a probation report and requested that he be sentenced immediately. His attorney joined.
The trial court sentenced defendant to six years in prison and remanded him to the custody of the sheriff for delivery to the Department of Corrections. It then said, “Execution of this sentence, however, will be stayed. The stay will expire at 8:30 a.m. on February the 2nd, ’07. At that time, if the defendant appears on time, not violate any laws between today and the sentencing, and submit to Bravo search terms, the Court will recall the sentence to the low term of 16 months doubled, rather than the upper term of three years doubled.” (Italics added.) The trial court added, “Mr. Sutton, on February 2nd, do not come in here at 8:30 and ask for a continuance to get your affairs in order.” Defendant acknowledged that he knew that. The court said that defendant was being released at that point to get his affairs in order. Defendant said he understood this. The trial court added, “Your stay of execution expires on that day, so make sure you are here on time.” Defendant replied in the affirmative. The trial court said, “Defendant will be released today on O.R. release, which is called a Vargas waiver.” (Italics added.)
Defendant’s change of plea form contains the following, “I agree to be sentenced today to a term of 6 years pursuant to P[eople] v. Vargas. If no violations of Vargas I will be resentenced to 32 months on Count 1 (16 [months] x 2) on 02-02-07 [, Department] S-23 [, at] 8:30 a.m. (I waive probation report.)” (Italics added.)
The minute order for February 2, 2007 states, “Defendant NOT present. [¶] . . . [¶] 8:43 Defendant having FTA for VARGAS RE-SENTENCING and there being no sufficient, legal or justifiable excuse to warrant Defendant’s absence, a BENCH WARRANT is ordered. . . . [¶] Bench Warrant issued; . . . Reason: FTA ON COURT ORDER”
Defendant next appeared in court via video from county jail on March 12, 2007. He was arraigned on the bench warrant. The minute order for that date states that defendant denied failing to appear. Sentencing was set for April 10, 2007.
There is no reporter’s transcript for this date in the record before us.
On April 10, the trial court reiterated the term of the plea bargain which defendant had violated by failing to appear on February 2, 2007. Defense counsel said defendant was asking that he be allowed to withdraw his plea because he did not understand “the language on the Vargas waiver . . . ” The trial court responded that the transcript of the taking of the plea showed that it had gone into great detail with defendant about the waiver. The trial court noted that in the supplemental probation report, defendant had told his probation officer that he took the Vargas waiver because his wife had been arrested two days before the hearing on the taking of his plea and he wanted to get out of custody to take care of their children, who were then staying with a friend. The probation report states that defendant’s wife was released from custody around February 10. Defendant told his probation officer that he failed to appear in court on February 2 because he and his family were homeless and he was looking for a place for them (and his wife, when she was released) to live. He said he was afraid to go to court after February 2nd, because the trial court had told him it would grant him no extensions and he did not want to leave his children “on the street by themselves.” Defendant had planned to turn himself in after his father’s funeral on March 14, but had been arrested on the 10th instead.
The trial court pointed out to defendant that his statement to the probation officer that he knew that he could get no extensions of his sentence past February 2 indicated that he understood what he had agreed to. Defendant replied, “ . . . I understood you had said that, . . . but I was still in the process of trying to get my family stable.” Defendant then admitted he understood the Vargas waiver and knew that the stay of execution of his sentence would expire. He acknowledged that he did not show up because he knew his stay would expire and not because he did not understand the consequences of his actions. His attorney asked the court to sentence defendant to the midterm, doubled, rather than the upper term as agreed-to, in light of defendant’s reasons for failing to appear, i.e., trying to find a home for his children. When the trial court indicated it was not inclined to do this, defendant pointed out that he had had previous Vargas waivers and stays of execution and this was the first time he had violated his agreement with the court. The court noted that it had already sentenced defendant to six years and declined to recall his sentence. It told the defendant that he had a right to a hearing on whether he violated his agreement. Defendant said he did not want such a hearing — that it was a waste of time — and he admitted the violation. The trial court lifted the stay on the previously imposed sentence of six years.
2. Defendant’s Contentions
In his three and one-half page hand printed personal supplemental brief, defendant submits documents assertedly supporting his contention that he secured housing for his family the day before he was arrested (March 10), that during January and February 2007, he was helping out his siblings and stepmother due to his father’s medical condition and that his nephew was killed March 10. However, we may not consider matters that are not part of the appellate record (People v. Smith (2007) 40 Cal.4th 483, 507) and these are not. Defendant also reiterates the point he made unsuccessfully to the trial court, i.e., that in connection with his past incarcerations by the Youth Authority and the Department of Corrections, he has not breached his plea agreements. Other than his unsupported assertions, nothing in the record before U.S. supports this claim. He also asserts that had the trial court not made its comment about not granting an extension of his stay should he ask for one on February 2, he “would have appeared as promised.” This contradicts his claim that it took him until March 9th to secure housing for his family (not to mention that his father and nephew did not allegedly die until March 6 and 10, respectively). Finally, defendant asserts that when he arrived at prison, which was sometime after April 10, 2007, he was diagnosed with severe mental and emotional stress for which he received 90 days of treatment while at the Department of Corrections. This is irrelevant to his failure to appear on February 2, 2007.
In support of this assertion, he submitted a copy of his the program from his father’s funeral.
In support of this assertion, he submitted a copy of flier which bears no name but a photo of a young individual and announces a funeral on March 27th, with the date of death hand-written on it.
Although the probation report fails to list his prior convictions and incarcerations, it does list the “cases which have all had DMV direct update failure to appear holds issued[.]”
In support of this assertion, he submitted a copy of a document which states that as of June 20, 2007, which is about two months after he was sentenced to prison, he had been in remission and free of psychotropic medication for 6 months.
Moreover, defendant’s waiver of his right to appeal and his failure to obtain a certificate of probable cause forecloses his contentions. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Panizzon (1996) 13 Cal.4th 68, 86.)
We have now concluded our independent review of the record and find no arguable issues.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.