Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County and petition for writ of habeas corpus, Super. Ct. No. SCS214290 Esteban Hernandez and Ronald H. Domnitz, Judges.
IRION, J.
Anthony Michael Thomas entered a negotiated guilty plea to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Under the plea bargain, the assault count would be treated in the future as a non-strike offense, and the remainder of the charges would be dismissed. The plea bargain called for a grant of formal probation, conditioned on, among other things, Thomas serving 180 days in jail. Subsequently, Thomas unsuccessfully sought to withdraw his guilty plea. At sentencing, Thomas refused to accept the terms and conditions of probation, and was sentenced to the low term of two years in prison.
Statutory references are to the Penal Code.
Thomas did not obtain a certificate of probable cause.
FACTS
Thomas, who was homeless and living in a transient camp, had a number of verbal and physical confrontations with a homeless couple, Mark Herbst and Barbara Miles, who also lived in the transient camp.
On January 5, 2007, Thomas told Herbst that he should not hit women. Thomas then attacked Herbst, knocking him to the ground. Thomas kicked and hit Herbst while he was on the ground. Miles later took Herbst to a hospital; Herbst had suffered a broken rib and facial fractures.
The dismissed counts involved two other confrontations between Thomas and Herbst and/or Miles.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel does not refer us to any possible, but not arguable, issues pursuant to Anders v. California (1967) 386 U.S. 738. However, counsel states that Thomas "personally requests" that we address the following issues: (1) whether the court erred in refusing him to withdraw his guilty plea and whether this issue is cognizable on appeal; (2) whether the court erred in finding Thomas competent under section 1368; and (3) whether the court erred in sentencing Thomas to prison rather than imposing probation.
First, without a certificate of probable cause, Thomas cannot challenge the trial court's denial of his motion to withdraw his guilty plea. (§ 1237.5; People v. Castelan (1995) 32 Cal.App.4th 1185, 1187.) "Because defendant's 'essential attack is on the validity of his plea, he is subject to . . . section 1237.5 even if he raises the question after the plea, by the vehicle of a motion to withdraw.' " (Castelan, at p. 1187.) This issue is not cognizable in Thomas's appeal.
Second, at the request of trial counsel, the court suspended criminal proceedings and ordered a mental examination of Thomas under section 1368. The psychiatrist who evaluated Thomas opined that he was mentally competent to stand trial. At the next hearing, the psychiatrist's report was introduced into evidence, the parties submitted the matter, and the court found that Thomas was competent to stand trial by a preponderance of the evidence. Competency findings are reviewed under the substantial evidence test. (People v. Lawley (2002) 27 Cal.4th 102, 131.) Substantial evidence supported the competency finding. There was no error.
Third, the record is clear that Thomas chose to reject probation in favor of a prison sentence. Also, the law is clear that Thomas "was within his rights when he refused to accept the terms of probation and it became the duty of the court at that moment to sentence him for the term prescribed by law." (Lee v. Superior Court in and for Contra Costa County (1949) 89 Cal.App.2d 716, 717.) There was no error.
We granted Thomas permission to file a brief on his own behalf. He has not responded to this invitation, but he has filed a petition for writ of habeas corpus.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by Thomas, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Thomas on this appeal.
We have consolidated Thomas's petition for writ of habeas corpus with this appeal. In his petition, Thomas asserts: (1) he received ineffective assistance of counsel because trial counsel did not advise him that he could reject the plea bargain offer; (2) he was illegally sentenced and fined; and (3) the presentence report was not disclosed to him or his counsel. We reject each of these assertions.
Thomas's claim that counsel was ineffective is belied by the record, which shows that counsel consulted with him, he had no further questions of counsel, and he freely, voluntarily and intelligently accepted the plea bargain. At the change of plea hearing, the following exchanges took place:
"THE COURT: All right. Is that what you wish to do this afternoon, Mr. Thomas? Plead guilty to count 1?
"[DEFENSE COUNSEL]: Yes.
"THE DEFENDANT: Yes.
"THE COURT: I'm going to ask you a series of questions to determine whether it is appropriate to take your guilty plea. If I ask you something you don't understand, I want you to stop me so I can give you more time to talk to your attorney. Do you agree to do that?
"THE DEFENDANT: Yes. [¶] . . . [¶]
"THE COURT: Has the D.A. or anyone else made any additional promises to you in order to get you to plead guilty?
"THE DEFENDANT: None that I can recall at this time.
"THE COURT: Do you need a minute to think?
"THE DEFENDANT: No. [¶] . . . [¶]
"THE COURT: . . . Before you initialed and signed this form, did you personally read or did you have read to you by your counsel everything contained in the change of plea form?
"THE DEFENDANT: I was informed.
"THE COURT: Okay. Did you thoroughly discuss with your attorney your change of plea, all of the facts of your case and any possible defenses you might have to the charge?
"THE DEFENDANT: They were discussed.
"THE COURT: And did you discuss that before you initialed and signed the form?
"THE DEFENDANT: Yes.
"THE COURT: If you had any questions, were they answered to your satisfaction by your attorney before you initialed and signed the form?
"THE DEFENDANT: I had no questions, but he informed me that if I had any, that he would answer them.
"THE COURT: Are you satisfied with the services of [defense counsel]?
"THE DEFENDANT: I guess. I would say yes.
"THE COURT: That is what they call faint praise, sir. Do you feel you need any more time with [defense counsel] before we go forward here today?
"THE DEFENDANT: None. [¶] . . . [¶]
"THE COURT: . . . I've had an opportunity to observe Mr. Thomas here in the courtroom and I do find that his answers to me are knowing, intelligent and voluntary and that he does wish to plead guilty. [¶] Is that right, Mr. Thomas?
"THE DEFENDANT: Yes."
There is no merit to Thomas's assertion that he was illegally sentenced and fined. At the sentencing hearing, Thomas informed the court he did not want to be placed on probation because he did not believe he could comply with the terms and conditions of probation. The court then imposed the lower term of two years and ordered the statutory fines be paid. There was no error. (Lee v. Superior Court in and for Contra Costa County, supra, 89 Cal.App.2d at p. 717.)
Thomas third assertion lacks merit. The record shows that the presentence report or probation report was provided to defense counsel who reviewed it with Thomas.
DISPOSITION
The judgment is affirmed. The petition is denied.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.