P. v. Erbe

Filed 3/10/06 P. v. Erbe CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen and Albert Harutunian III, Judges. Affirmed.

After the trial court granted a request for substitution of counsel (People v. Marsden (1970) 2 Cal.3d 118), and denied a second and third request for substitution of counsel, Robert F. Erbe entered a negotiated guilty plea to misdemeanor causing personal injury while driving under the influence of alcohol or drugs (Veh. Code, § 23153, subd. (a), Pen. Code, § 17, subd. (b)), hit and run (Veh. Code, § 20001, subd. (a)), and petty theft with a prior theft conviction (Pen. Code, §§ 666/484). He admitted serving two prior prison terms (Pen. Code, §§ 667.5, 668). The court denied a motion to withdraw the guilty plea and sentenced him to a stipulated four years in prison: the two-year middle term for hit and run enhanced by two 1-year terms for the prior prison terms. It imposed concurrent terms on the remaining convictions. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether the trial court erred in denying the August 4, 2004, Marsden motion, (2) whether this issue can be raised on appeal after a guilty plea, and (3) whether the issue of the timeliness of the prosecution can be raised on appeal after the guilty plea.[1][1]

We granted Erbe permission to file a brief on his own behalf. On December 1, 2005, we granted Erbe's request for a 30-day extension to file a supplemental brief. He has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Erbe on this appeal.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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[1][1] Because Erbe entered a guilty plea, he cannot challenge the facts underlying the convictions. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.