Opinion
A157135
09-18-2019
THE PEOPLE, Plaintiff and Respondent, v. DALE GARY WILLS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H58655)
Defendant Dale Gary Wills appeals after his probation was revoked and he was sentenced to prison. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.
Defendant was charged with second degree robbery (Pen. Code, § 211), with allegations that he personally used a deadly weapon, a boxcutter knife (§ 12022, subd. (b)(1)), causing the offense to be a serious felony (§ 1192.7, subd. (c)(23)), and various prior conviction, prior prison term, and strike allegations.
All statutory references are to the Penal Code. --------
Evidence at the preliminary hearing showed that defendant approached the victim of the robbery, "sucker punched" him on the side of his head, knocking him to the ground, kicked him, and tried to take his backpack. When the victim tried to retain his backpack, defendant pulled out a box cutter and waved it at him in a threatening manner. The victim gave defendant his backpack.
Pursuant to a negotiated disposition, defendant pled no contest to robbery, and the remaining allegations were dismissed for sentencing purposes. On June 28, 2016, the trial court suspended imposition of sentence, placed defendant on probation for five years, and imposed fees and fines.
Defendant's probation was summarily revoked on July 5, 2018, after he was arrested for entering a car belonging to someone else, damaging the door lock, and rummaging through it.
Based on a negotiated disposition, on December 7, 2018 defendant admitted the probation violation, and his probation was reinstated. Among his agreed-upon terms of probation, he was ordered to serve 240 days in county jail and participate in a substance abuse treatment program, and he waived his right to have his jail time used for future custody credits. (People v. Burks (1998) 66 Cal.App.4th 232.)
Defendant later brought a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), contending his counsel had failed to advise him that he would serve less time in custody if he were sentenced to prison for the robbery under the terms of an offer the People had made than if he accepted probation with a county jail term. The trial court denied the motion.
Defendant reached an agreement with the People that the December 7, 2018 order reinstating probation would be set aside and he would be sentenced to state prison for the low term of two years for the robbery conviction. The trial court so ordered, awarding 534 days of presentence custody credits.
After filing his notice of appeal, defendant made a request for a certificate of probable cause, which the trial court denied.
There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.