Opinion
F062042
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. JERRY DON WEBB, JR., Defendant and Appellant.
Deborah Prucha, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. BF133795A)
OPINION
THE COURT
Before Levy, Acting P.J., Dawson, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Deborah Prucha, 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, Jerry Don Webb, Jr., was charged in a criminal complaint filed on September 14, 2010, with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count one), making a criminal threat (§ 422, count two), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count three), inflicting unjustifiable physical pain or mental suffering on an elder adult 65 years of age or older (§ 368, subd. (b)(1), count four), misdemeanor brandishing of a knife (§ 417, subd. (a)(1), count five), and misdemeanor battery (§ 243, subd. (a), count six). The complaint further alleged a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)), a prior serious felony conviction enhancement (§ 667, subd. (a)), and four prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise designated, all statutory references are to the Penal Code.
On September 27, 2010, the complaint was amended to allege a second serious felony conviction within the meaning of the three strikes law. On that date, the parties entered into a plea agreement. Appellant executed a felony advisement of rights, waiver, and plea form acknowledging and waiving his constitutional rights pursuant to Boykin/Tahl. Appellant also acknowledged the consequences of his plea. Appellant would admit count one and both strike allegations in return for the striking of one serious felony allegation, a stipulated prison term of eight years, and the dismissal of the remaining allegations.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
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The court determined that appellant went over his rights with his attorney, signed and initialed the plea form, and that he understood and waived his rights. The parties stipulated to a factual basis for the plea. Appellant pled no contest to count one and admitted the two prior serious felony conviction allegations. The court granted the prosecutor's motion to dismiss the remaining allegations.
On October 26, 2010, the court granted defense counsel's request to suspend criminal proceedings to determine appellant's competency pursuant to section 1368. The court appointed a psychologist to evaluate appellant. On November 24, 2010, the court accepted the report of the psychologist and the parties submitted the matter based on that report. The court found appellant competent and reinstated criminal proceedings against him. Appellant's counsel indicated appellant would be filing a motion to withdraw his plea. Sentencing was continued on December 13, 2010, after defense counsel requested a continuance to file a motion for appellant to withdraw his plea.
On January 5, 2011, defense counsel told the court he was not pursuing a motion for appellant to withdraw his plea. The court struck one of the prior serious felony allegations and sentenced appellant to prison for four years, doubled to eight years pursuant to the three strikes law and the terms of appellant's plea agreement. The court imposed a restitution fine of $200, granted total custody credits of 175 days, and imposed a court security fee.
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.
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 8, 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.