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People v. Winfrey

California Court of Appeals, First District, Second Division
Apr 30, 2009
No. A121996 (Cal. Ct. App. Apr. 30, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CLAYTON LEE WINFREY, Defendant and Appellant. A121996 California Court of Appeal, First District, Second Division April 30, 2009

NOT TO BE PUBLISHED

Marin County Super. Ct. No. SC158103B

Haerle, Acting P.J.

I. INTRODUCTION

Pursuant to a plea agreement with the prosecution, appellant pled guilty to one count of a four-count information. That count charged assault with a firearm (Pen. Code, § 245, subdivision (a)(2)), and included numerous enhancements. Pursuant to the plea agreement, he was sentenced to eight years in state prison, albeit presenting a Marsden motion at the sentencing hearing. Thereafter, appellant filed a notice of appeal, but neither sought nor obtained a certificate of probable cause. (See § 1237.5.) Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellant has filed a brief asking this court to examine the record and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the judgment.

All statutory references are to the Penal Code, unless otherwise noted.

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

II. FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2008, Marvin Rodas-Diaz was in San Rafael to acquire cars to bring back to his native Guatemala. At Windward Way in San Rafael, he parked a Toyota pick-up truck he had borrowed from his brother (who lived in San Rafael) and was walking toward a car carrier parked nearby when he was approached by appellant, who held a gun to his neck. After obtaining the keys to the truck, appellant gave them to a woman who drove appellant and Rodas-Diaz to a hotel. There, appellant brought Rodas-Diaz into a second-floor room. The latter then tried to escape, but was shot in the leg by appellant. Appellant and the woman took $280 to $300 from his person, plus some Guatemalan currency, and another $5,500-5,800 from the Toyota.

All further dates noted are in 2008.

On March 5, a complaint was filed charging appellant with four counts: count 1 charged kidnapping in the course of car-jacking under section 209.5, subdivision (a), with numerous enhancements; count 2 alleged car-jacking under section 215, subdivision (a), also with numerous enhancements; count 3 alleged assault with a firearm under section 245, subdivision (a), also with enhancements; and count 6 charged appellant with possession of a firearm by a felon under section 12021, subdivision (a)(1), with an enhancement and a prior felony allegation.

Counts 4 and 5 were filed against appellant’s accomplice, i.e., the woman who helped him the preceding month.

A preliminary hearing commenced on April 16. After initial testimony and cross-examination, appellant made a Marsden motion that was heard and denied by the court. On the third day of that hearing, a negotiated disposition was reached under which appellant, represented by counsel, entered a plea of guilty to count 3, which was amended to include another enhancement (under section 12022.5). Appellant agreed to all the customary waivers, and the other counts against him were dismissed with a Harvey waiver. It was agreed that appellant would receive a determinate sentence of eight years.

People v. Harvey (1979) 25 Cal.3d 754.

At the sentencing hearing on June 20, appellant made a second Marsden motion that was heard and also denied. Appellant was then sentenced to the agreed-upon eight-year term, i.e., a low term of two years for the third count, to which was added three years for the enhancement under section 12022.7, and a three-year low term for the personal use of a firearm enhancement under section 12022.5, subdivision (a), given custody credits totaling 125 days, and ordered to pay restitution and parole revocation fines.

On July 2, appellant filed a timely notice of appeal but, as noted, did not ask for or obtain a certificate of probable cause.

III. DISCUSSION

Pursuant to California Rules of Court, rule 8.304(b)(4)(B), the only issues conceivably before us are those arising post-plea; in this case, that includes only the sentence given appellant and the denial of his second Marsden motion made at the sentencing hearing.

Regarding the sentence, there is clearly no issue deserving of further briefing. In entering his plea of guilty on April 18, appellant fully acknowledged his understanding that the term to which he would be sentenced was eight years. Even more significantly, that term included the low term of two years for the offense charged in count 3 (assault with a firearm) and another low term of three years for the section 12022.5, subdivision (a), enhancement.

Regarding the second Marsden motion appellant submitted to the court at the sentencing hearing, that court properly denied it. This is so because, among other things, appellant’s argument to the court that his attorney had led him to believe that he would not be sentenced to prison but, rather, would receive probation, addiction treatment, county jail time, probation, or the like was totally contrary to the plea agreement memorialized both verbally and in writing two months earlier.

There are no issues deserving of further briefing.

IV. DISPOSITION

The judgment is affirmed.

We concur: Lambden, J., Richman, J.


Summaries of

People v. Winfrey

California Court of Appeals, First District, Second Division
Apr 30, 2009
No. A121996 (Cal. Ct. App. Apr. 30, 2009)
Case details for

People v. Winfrey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CLAYTON LEE WINFREY, Defendant…

Court:California Court of Appeals, First District, Second Division

Date published: Apr 30, 2009

Citations

No. A121996 (Cal. Ct. App. Apr. 30, 2009)