Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Ct. Nos. FWV034837 & FWV038619, Douglas M. Elwell, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster J.
I
INTRODUCTION
In a third amended information, in case No. FWV034837, the San Bernardino District Attorney charged defendant and appellant Ricky Young with (1) grand theft, in violation of Penal Code section 487, subdivision (a) (count 1); (2) receiving stolen property, in violation of section 496, subdivision (a) (count 2); (3) second degree commercial burglary, in violation of section 459 (count 3); and (4) petty theft with seven prior theft-related convictions, in violation of section 666 (count 4). The third amended information also alleged two prior serious or violent felony convictions under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and 11 prior prison terms under section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise specified.
While defendant was awaiting trial and in county jail for case No. FWV034837, defendant was charged by felony complaint with custodial possession of a weapon in violation of section 4502, subdivision (a), in case No. FWV038619. The complaint also alleged four prior serious or violent felony convictions under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and 12 prior prison terms under section 667.5, subdivision (b).
Defendant entered into a plea agreement and negotiated disposition for both cases. In case No. FWV034837, defendant withdrew his not guilty pleas and pled guilty to count 1, in violation of section 487, subdivision (a), and admitted one prior serious or violent felony conviction. In exchange, defendant was promised a prison sentence of six years consecutive to the sentence to be imposed in case No. FWV038619, and that all remaining counts and allegations would be dismissed at sentencing. In case No. FWV038619, defendant pled guilty to one count in violation of section 4502, subdivision (a). He also admitted one prior serious or violent felony conviction. In exchange, defendant was promised a prison sentence of eight years to be served consecutive to the sentence to be imposed in the other case, and that all remaining counts and allegations would be dismissed at sentencing.
Thereafter, defendant moved to withdraw his guilty pleas in both cases. The court denied the motion.
At the sentencing hearing, in case No. FWV034837, the trial court denied probation and sentenced defendant on count 1 to the upper term of three years in state prison, doubled to six years under the two strikes provisions of the three strikes law under section 667, subdivision (e)(1). The court ordered the sentence to be served consecutive to the sentence imposed in the other case. The court dismissed counts 2 through 4, and ordered all prior prison term enhancements stricken under section 1385. In case No. FWV038619, the trial court denied probation and sentenced defendant on count 1 to the upper term of four years in state prison, doubled to eight years under the two strikes provisions of the three strikes law under section 667, subdivision (e)(1). The court struck all prior prison term enhancements under section 1385.
Defendant appeals.
II
FACTUAL AND PROCEDURAL HISTORY
A. Case No. FWV034837
On March 22, 2005, Daniel Wayne was employed as store manger of a Stater Brothers market in Ontario, San Bernardino County. At approximately 3:30 p.m., Wayne observed defendant carrying two duffle bags in the store. Wayne watched defendant walk down a store aisle. Within minutes, Wayne heard the back door emergency exit alarm, which indicated that property was being removed from the store without payment.
On hearing the alarm, Wayne ran out of the front entrance to the back of the store. When he reached the back, Wayne saw defendant near store dumpsters. Wayne approached defendant and asked where his product was. Defendant replied, “I don’t have it anymore.” Wayne also testified that defendant alternatively might have said, “the girls have it.” Defendant then walked away from the store. Wayne looked in the dumpster and recovered two duffle bags containing store property, including boxes of Visine and other eye medication. Store security tags were still on the items.
Later that day, Wayne calculated that the value of the items found in the duffle bags was approximately $450.
Almost one year later, in an information filed on February 16, 2006, defendant was charged with grand theft in violation of section 487, subdivision (a). The information alleged one prior serious or violent felony conviction under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and 11 prior prison terms under section 667.5, subdivision (b). On February 28, 2006, defendant pled not guilty and denied all prior convictions and prison terms.
On March 27, 2006, defendant moved to dismiss the information under section 995. The court denied the motion on April 25, 2006.
On April 10, 2006, in a first amended information, defendant was charged with grand theft under section 487, subdivision (a) (count 1); receiving stolen property under section 496, subdivision (a) (count 2); and second degree commercial burglary under section 459 (count 3). The first amended information also alleged one prior serious or violent felony conviction under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and 11 prior prison terms under section 667.5, subdivision (b).
On April 24, 2006, in a second amended information, defendant was charged with one additional count—petty theft with seven prior theft-related convictions under section 666 (count 4). The second amended information left the additional allegations unchanged.
At his arraignment on April 25, 2006, defendant pled not guilty, and denied all special allegations. On the same day, trial by jury commenced. Defendant refused to speak, participate, or appear at trial. After a hearing, the trial court found that defendant was disruptive and voluntarily chose not to be present at trial under People v. Welch (1999) 20 Cal.4th 701.
On April 26, 2006, counsel declared a doubt as to defendant’s mental competence. In response, the trial court declared “a doubt as to [defendant’s] present ability to stand trial” and suspended criminal proceedings. The court went on to appoint a medical commission to examine defendant and report as to his competence under sections 1368 and 1369. On June 22, 2006, the court appointed a third examiner under section 1368.
Defendant personally waived a jury trial on the issue of his competency and agreed to submit the issue to the court for decision on the basis of the medical examiners’ reports. After a hearing on November 3, 2006, the court found defendant mentally competent and reinstated criminal proceedings.
On December 1, 2006, appointed counsel was relived and defendant was granted the right to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). Defendant subsequently withdrew his request for self-representation. New counsel was appointed on March 27, 2007.
Defendant moved to disqualify the prosecuting attorney on February 20, 2007, under section 1424. On June 22, 2007, defendant again moved to relieve appointed counsel and to represent himself under Faretta, supra, 422 U.S. 806. The court granted the motion on July 27, 2007.
On August 10, 2007, a third amended information, the operative information in this case, was filed against defendant—as outlined in detail above. In summary, the information charged defendant with grand theft, receiving stolen property, second degree commercial burglary, and petty theft with seven prior theft-related convictions. The information also alleged two prior serious or violent felony convictions and 11 prior prison terms. At this arraignment on August 10, 2007, defendant refused to respond or enter pleas; the court entered pleas of not guilty on behalf of defendant as to all counts, and denials of all special allegations.
On August 15, 2007, defendant withdrew his request for self-representation, and counsel was appointed to represent him on that date. Defendant subsequently moved to relieve counsel under People v. Marsden (1970) 2 Cal.3d 118, but withdrew the motion on February 5, 2008.
On February 11, 2008, defendant moved to dismiss the information under section 995. After a hearing, the trial court denied the motion.
Thereafter, on March 18, 2008, pursuant to a negotiated plea agreement, defendant pled guilty to one count in violation of section 487, subdivision (a), and admitted one prior serious or violent felony conviction, as provided in detail above.
Before entering his plea, defendant was informed of, and he waived, his rights to trial by jury, to confront and cross-examine witnesses, to subpoena witnesses for his defense and to testify in his own defense, and his privilege against self-incrimination. Defense counsel concurred in defendant’s waivers and his plea. Defense counsel also stipulated to a factual basis for the plea and prior conviction based on the preliminary hearing transcript, police reports, and rap sheets. Finding a factual basis for defendant’s plea and prior conviction, and that his plea was knowing, intelligent, and voluntary, the court accepted defendant’s plea and prior conviction admission.
On May 13, 2008, defendant moved to withdraw his plea. The court denied the motion on May 27, 2007.
On May 30, 2008, the trial court denied probation and sentenced defendant on count 1, to the upper term of three years in state prison doubled six years under the three strikes law. The court ordered the sentence to be served consecutive to the sentence imposed in case No. FWV038619. The court dismissed the remaining counts and ordered all prior prison term enhancements stricken under section 1385. The court also imposed a restitution fine in the amount of $200 under section 1202.4, subdivision (b), and imposed, but suspended, a parole revocation fine in the same amount under section 1202.45, subdivision (b).
B. Case No. FWV038619
On April 26, 2006, Gary Wynings was representing defendant in case No. FWV034837. Defendant was in custody at the time. On meeting defendant in an interview room at the Rancho Cucamonga Courthouse, adjacent to one of the courtrooms, Wynings observed a sharp, shiny metal object in defendant’s hand, similar to a razor blade. Defendant told Wynings that he intended to hurt himself.
Wynings left the interview room and went into the adjacent courtroom. He informed the judge of the incident as follows:
“I’ve had a chance to briefly talk in the interview room with my client through the telephone apparatus that they have for such purposes about trial matters and today’s anticipated calendar and what we’re going to do, et cetera. [¶] And in talking to my client, I need to inform the Court and the deputies that he has indicated to me that he is planning on harming himself today, and in so making such a statement to me he has shown me that he possesses a piece of metal about one-inch long, one-and-a-half inches long that he currently has on his possession with the intent to use that to harm himself.”
Deputy Sheriff Eric Brock testified at the preliminary hearing that on that April 26, 2006, he was assigned as a bailiff to Department 11 of the Rancho Cucamonga Courthouse. In response to the information disclosed to the court by Wynings, Deputy Brock and Sergeant Bamberger went to defendant’s holding cell. After observing defendant for a brief period of time, Deputy Brock entered the cell. He noticed that defendant was holding an object up to his neck. Defendant was covering the object with his hand. At the deputy’s request, defendant discarded the item. The deputy retrieved a piece of a broken razor blade, approximately one-half inch in length. The blade was sharp.
After defendant was handcuffed, Deputy Brock asked him if he had any other objections in his possession. Defendant disclosed that he had another item in his medical wrist band that he was wearing. Deputy Brock retrieved another piece of a broken razor blade in defendant’s wrist band. It, too, was sharp to the touch.
On August 20, 2006, while defendant was awaiting trial in the other case, he was charged by felony complaint with custodial possession of a weapon under section 4502, subdivision (a). The complaint also alleged four prior serious or violent felony convictions under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and 12 prior prison terms under section 667.5, subdivision (b).
At his arraignment on August 31, 2006, defendant pled not guilty, and he denied all special allegations. On the same date, the court declared a doubt as to defendant’s mental competence and suspended criminal proceedings under section 1368.
Defendant personally waived a jury trial on the issue of his competency and agreed to submit the issue to the court for decision on the basis of the medical examiners’ reports. After a hearing on November 3, 2006, the court found defendant mentally competent and reinstated criminal proceedings.
On December 1, 2006, appointed counsel was relived and defendant was granted the right to represent himself under Faretta, supra, 422 U.S. 806.
A preliminary hearing was held on December 11, 2006. On December 14, the trial court held defendant to answer all charges, allegations, and alleged prior convictions.
By information filed on December 15, 2006, defendant was charged with the same crime and special allegations as in the felony complaint. At his arraignment on December 20, defendant pled not guilty, and denied all special allegations.
On February 20, 2007, defendant moved to disqualify the prosecuting attorney; the motion was denied on March 16, 2007.
On March 19, 2007, the trial court granted defendant’s motion to bifurcate trial of the alleged prior convictions and prison terms. On March 27, 2007, defendant withdrew his pro se status and an attorney was appointed to represent him. On June 22, 2007, defendant again moved to relieve appointed counsel and to represent himself under Faretta, supra, 422 U.S. 806. Defendant’s motion was granted on July 31, 2007.
Trial by jury commenced on July 31, 2007. On the first day of trial, the information was amended by interlineations to change the description of the alleged weapon to a sharp instrument. Arraigned on the amended information, defendant pled not guilty, and denied all prior convictions and prison terms. The parties stipulated to bifurcation of the alleged prior convictions and prison terms. A jury panel was selected and sworn on the first day of trial. Due to defendant’s medical condition and hospitalization, the jury trial was recessed on August 1, 2007, and continued to August 6, 2007.
Defendant refused to participate in his trial. After a hearing, the trial court found defendant was purposely disruptive. Defendant requested to be tried in absentia and left the courtroom on August 6, 2007. The jury trial continued in defendant’s absence. The jury returned a verdict on August 6, 2007, finding defendant guilty on count 1 of custodial possession of a weapon.
Trial of the alleged prior convictions commenced on August 7, 2007. The trial court granted the prosecution’s oral motion to amend the information to strike all prior convictions and special allegations except in four cases. The jury found true four prior serious or violent felony convictions.
Defendant moved for a new trial on November 14, 2007, on the grounds that the court erred in refusing to allow defendant a reasonable continuance, in failing to guarantee defendant’s pro se library privileges, and by denying defendant due process of law during trial. After a hearing, the trial court granted defendant’s motion for a new trial on January 25, 2008. Defendant subsequently moved to relieve counsel under People v. Marsden, supra, 2 Cal.3d 118, but withdrew the motion on February 5, 2008.
Under a negotiated plea agreement, as provided above, defendant withdrew his not guilty plea and pled guilty to one count in violation of section 4502, subdivision (a). He also admitted one prior serious or violent felony conviction.
Before entering his plea, defendant was informed of, and he waived, his rights to trial by jury, to confront and cross-examine witnesses, to subpoena witnesses for his defense and to testify in his own defense, and his privilege against self-incrimination. Defense counsel concurred in defendant’s waivers and his plea. Defense counsel also stipulated to a factual basis for the plea and prior conviction based on the preliminary hearing transcript, police reports, and rap sheets. Finding a factual basis for defendant’s plea and prior conviction, and that his plea was knowing, intelligent, and voluntary, the court accepted the plea.
Defendant moved to withdraw his plea on May 13, 2008; the court denied the motion.
On May 30, 2008, the trial court denied probation and sentenced defendant on count 1 to the upper term of four years in state prison, doubled to eight years under the three strikes law. The court struck all prior prison term enhancements under section 1385. The court then imposed a restitution fine in the amount of $200 under section 1202.4, subdivision (b), and imposed, but suspended a parole revocation fine in the same amount under section 1202.45, subdivision (b). The trial court ordered defendant to comply with the DNA requirements of section 296.
III
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., Miller J.