Opinion
F061855
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. ISSAC DIANTA THOMAS, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. 09CM1959, 09CM2029B, 10CM0374)
OPINION
THE COURT
Before Kane, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
STATEMENT OF THE CASE
Appellant, Issac Dianta Thomas, was charged in a consolidated information in case Nos. 09CM1959 and 10CM0374 filed on December 10, 2010, with four counts of robbery (Pen. Code, § 211, counts one, two, four & five), being a felon in possession of a firearm (Pen. Code, § 12021.1, subd. (a), count three), assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), count six), and dissuading a witness (Pen. Code, § 136.1, subd. (b)(1), count seven). The robbery counts further alleged that appellant used a firearm within the meaning of Penal Code sections 12022, subdivision (a)(1), 12022.5, subdivision (a), and 12022.53, subdivision (b).
On August 20, 2009, appellant entered a no contest plea in case No. 09CM2029B to one misdemeanor count of passing a check with insufficient funds (Pen. Code, § 476a, subd. (a)). Appellant was placed on probation for three years. The offenses in the other two cases allegedly occurred in June 2009, before appellant was placed on probation.
On December 13, 2010, appellant entered into a plea agreement. Under the terms of the agreement, appellant would admit counts one and four, which would both be amended to allege two victims rather than one. Appellant would admit count six, as well as a Penal Code section 12022.5, subdivision (a) gun enhancement as to count four. Appellant would receive stipulated sentences of five years on one robbery count, one year on another robbery count, four years for the gun-use enhancement on count four, and one year on count six for a total stipulated prison term of 11 years. The remaining allegations would be dismissed. When the court asked appellant if he understood the agreement and the length of his sentence, appellant replied, "Yes, sir."
The court advised appellant, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. The court reviewed with appellant the consequences of his plea. The parties stipulated to the preliminary hearing transcript as a factual basis for appellant's change of plea. Appellant pled no contest to counts one, four, and six and he admitted the gun-use enhancement. The remaining allegations were dismissed.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Prior to sentencing on January 18, 2011, appellant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), asserting that although he was told he would receive a sentence of one year in addition to his sentence on the robbery allegations and enhancement, he was not told the sentence of one year would be for assault.
The court explained that appellant's counsel was trying to have appellant admit a simple assault rather than a third robbery count. The court told appellant robbery was a more egregious offense and that even if appellant was not a direct perpetrator of the third robbery, he could still be liable for aiding and abetting the robbery. After a brief consultation with his counsel, appellant told the court he did not understand aiding and abetting. The court explained that aiding and abetting does not mean appellant actually committed a particular offense, but that he helped the perpetrator. The court used the hypothetical example of appellant acting as a lookout while a companion ran into a store and grabbed merchandise.
Appellant stated he still did not understand what was happening. Appellant stated that the stipulated sentence of 11 years was not a good agreement because he did not assault or rob anyone. The court reviewed the change of plea hearing transcript. The court noted there was no problem with the plea, appellant failed to show any inadequacy in his trial counsel's representation, and appellant did not make a colorable claim as to any matter occurring outside the courtroom. The court denied the Marsden motion.
On January 18, 2011, the court sentenced appellant according to the stipulated term of the plea agreement. The court imposed the upper term of five years on count four plus a consecutive term of four years for the gun-use enhancement. The court sentenced appellant consecutively to a term of one year on count one and one year on count six for a total prison term of 11 years. The court awarded direct victim restitution, imposed a restitution fine of $2,200 pursuant to Penal Code section 1202.4, subdivision (b), and awarded total custody credits of 613 days.
Appellant filed a timely notice of appeal but did not obtain a certificate of probable cause. Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
The gravamen of appellant's comments to the court was that he did not understand the plea agreement. This was an attack on the validity of the plea itself. Appellant's Marsden motion included a request to withdraw his plea, which was also an attack on the validity of the plea itself. Appellant's failure to obtain a certificate of probable cause is a procedural bar to attacking the validity of his plea on appeal. (People v. Johnson (2009) 47 Cal.4th 668, 677-685; People v. Panizzon (1996) 13 Cal.4th 68, 77-79 (Panizzon).) The crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. If, as here, the challenge is to the validity of the plea, the defendant must have a certificate of probable cause. (People v. Emery (2006) 140 Cal.App.4th 560, 564-565 [substance of post trial motion to withdraw plea was based on a witness's recantation and constituted a challenge to the validity of the plea, requiring a certificate of probable cause].)
In addition to the procedural bar to appellate review of appellant's Marsden motion, we further question the substance of any potential issue on appeal. Although appellant stated at the Marsden hearing that he did not understand the plea agreement, during the change of plea hearing appellant told the court that he understood the agreement and the length of his sentence. The appellant did not contradict the trial court's statement that there was nothing procedurally wrong with the plea hearing. In fact, it appears appellant was denying that he committed any crime at all. A guilty plea is, for most purposes, the legal equivalent of a jury's guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A no contest plea is legally equivalent to a guilty plea and constitutes an admission of every element of the offense admitted. (People v. Warburton (1970) 7 Cal.App.3d 815, 820821.) It appears appellant was showing little more than buyer's remorse concerning his sentence at the postplea Marsden hearing. This is an insufficient basis to compel judicial discretion to permit withdrawal of a guilty plea. (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
FACTS
Liquor Store Robbery
On June 19, 2009, Detective Bryan Toppan with the Hanford Police Department was dispatched to the Stop Zone Mini Mart in Hanford to investigate an armed robbery that had occurred that evening just after midnight. Toppan spoke to Mr. Grewal, one of the clerks in the store. Grewal said two people came into the store, one with a skull mask over his face and one with a bandana covering his nose and mouth. The clerks were ordered to the ground. Grewal initially complied, but then stood up after an assailant struck the cash register with his fist and popped open the drawer. Grewal then closed the drawer. One assailant struck Grewal in the face while the other grabbed a handful of lollipops before they escaped.
Toppan saw swelling on Grewal's face. Grewal recognized one of the assailants as a person who regularly came into the store to buy cigars, and had bought cigars earlier that evening. Grewal told the assailant that he knew him. The assailant told Grewal that Grewal did not know him.
Toppan watched a surveillance video of the incident. Toppan explained that the assailant with the mask was carrying a gun and pointed it toward the clerk. After a brief scuffle between the clerk and one of the assailants, Toppan saw one of the assailants grab an item off of the counter before the two assailants escaped. Toppan watched a second video from another time that same day. In that video, a Black adult male walked into the store wearing braids. This person was wearing what appeared to be the same shoes and shorts as one of the assailants during the robbery.
Toppan showed a still photograph from the videos to another officer who had encountered appellant in a previous arrest. Toppan put together a photographic line-up and brought it back to the store. Grewal and another witness identified appellant as one of the assailants during the robbery. After appellant was arrested, he was interrogated. The interrogating officer noticed appellant was wearing the same athletic shorts as the assailant who was wearing a mask and holding a gun in the robbery video.
Taco Truck Robbery
Senior Deputy Sheriff Robert Waggle with the Kings County Sheriff's Department was working as a detective and supervisor with the rural crimes unit on June 19, 2009, when he was called to an armed robbery at 12:45 a.m. in the 9000 block of East Lacey Boulevard in Hanford. The victims were Gildardo Gonzalez and Elvia Lopez. Gonzalez told Waggle that as he was closing up his taco truck, he was approached by a Black male who asked for two burritos. Gonzalez told him he was closed. As Gonzalez walked back to his taco truck, the assailant attacked him, punching him above his right eye.
After being knocked to the ground, Gonzalez saw two other Black males run over from across the road. One was wearing a death mask and was carrying an aluminum-colored revolver. Gonzalez began screaming for help. One of the assailants pointed a gun at Gonzalez and demanded his wallet. Gonzalez got up to comply with the demand and then ran away after giving the assailant his wallet.
The person with the mask and gun ran over to the car parked by the taco truck where Gonzalez's wife, Elvia Lopez, was sleeping and tapped on the car window. Lopez tried to call for help from her cell phone.
Lopez told Waggle she went to visit her husband while he was working and fell asleep in the passenger seat of her car. Lopez heard her husband calling for help and saw that he was being repeatedly hit. Lopez attempted to call for help from her cell phone. Another assailant came over and took Lopez's phone from her. This person was wearing a death mask and carrying a metallic looking gun. He pointed the gun at Lopez twice.
Lopez rolled up her car window. The man tapped his gun on the window again. She was afraid he would shoot her, so Lopez opened the car window. The assailant demanded money from Lopez. Lopez told the man she had no money, just her identification, social security card, and her baby's immunization records. The man took her purse and ran away. Lopez saw her husband being chased by one of the assailants.
APPELLATE COURT REVIEW
Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on July 5, 2011, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.