P. v. Biscovich

Filed 8/1/06 P. v. Biscovich CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Edward Lee Biscovich was convicted by no contest plea of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c).)[1] He admitted using a deadly and dangerous weapon during the commission of the offense (§ 12022, subd. (b)(1)). He also admitted that he had eight prior strikes (§ 1170.12), and three prior serious felonies

(§ 667, subd. (a)), and that he had served three prior prison terms (§ 667.5, subd. (b)). After denying defendant's motion to withdraw his plea, and defendant's Romero motion,[2] the court sentenced defendant to the indeterminate term of 25 years to life, consecutive to the determinate term of 15 years. On appeal defendant contends that the trial court erred by denying his motion to withdraw his plea, and that the Three Strikes law, as applied to him, is cruel and unusual punishment. We disagree with both of defendant's contentions and therefore affirm the judgment.

FACTS

On July 2, 2004, defendant was serving a prison term when he escaped from the California Medical Facility in Vacaville, taking a state vehicle. On July 5, 2004, at approximately 12:15 p.m., Nina Fujihara reported to police that when she returned to her car in the San Jose Home Depot parking lot, she got into the car and placed her purse on the passenger seat. A man came and stood next to her, holding her car door open with his body. He had a knife in his hand and he told her that they needed to go for a ride. He attempted to enter the rear passenger door of her car when other people appeared nearby. The man stated, â€