P. v. Glasper

Filed 9/27/07 P. v. Glasper CA1/3

Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Charles Alfred Glasper pled guilty to one count of assault by means of force likely to produce great bodily injury (Pen. Code,[1]  245, subd. (a)(1)) and one count of making criminal threats ( 422). Appellant also admitted an allegation he personally inflicted great bodily injury during the commission of the assault ( 12022.7, subd. (e)), and he admitted a number of allegations concerning prior convictions and prison terms served ( 667, subds. (a)(1) & (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d), & 1203, subd. (e)(4).)  The trial court sentenced him to 19 years in state prison. Appellants court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.

Factual and Procedural Background

Kendra Sigman met appellant in May 2005 and had an intimate relationship with him for about six weeks. On June 22, 2005, Sigman picked up appellant in Oakland and returned with him to her apartment in Corte Madera. She agreed to drive him back to Oakland either later that night or the following day.

Sigman and appellant consumed alcohol during the evening and got intoxicated. Appellant also used cocaine. At about 3:00 a.m., appellant asked Sigman to drive him home. Because she had been drinking, Sigman declined. Appellant started screaming at Sigman, telling her she was going to be a dead woman if any family member or friend had to come pick him up from her apartment. Sigman became very frightened and felt her life was threatened. When Sigman tried to use her cell phone to call the police, appellant grabbed it and threw it across the bedroom, breaking it.

Sigman went into the kitchen and picked up a knife to protect herself. After appellant asked her what she planned to do with the knife, Sigman put down the knife and left the kitchen. Appellant followed her into a hallway, grabbed her from behind, and hit the left side of her face, causing her to bounce off the wall. She fell to the floor, hitting her head on the corner of a wall.

Appellant put a choke hold on her then hit her two more times in the face and upper body. Appellant continued to argue with Sigman about taking him home. He broke a glass by throwing it across the bedroom, and he also set the bedroom curtains on fire.

One or more neighbors called the police. Appellant grabbed his belongings and left after one of the neighbors yelled that the police were coming. Fearful of appellant, Sigman initially did not accurately report to the police what had happened. As a result of being hit, Sigman received two black eyes and a scrape above her left eyebrow. She had bruises all over her chest, and her left cornea was scratched. The wound above her left eyebrow left a scar.

Following a preliminary hearing, the district attorney filed a two-count information on July 21, 2006, charging appellant with assault by means of force likely to produce great bodily injury, in violation of section 245, subdivision (a)(1) (count 1), and making criminal threats, in violation of section 422 (count 2). As to count 1, the People alleged that appellant personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (e). As to both counts, the People alleged appellant had suffered two prior strikes under section 1170.12, subdivisions (a) through (d) and section 667, subdivision (b) through (i), as well as two prior serious or violent felony convictions within the meaning of section 667, subdivision (a)(1). As to both counts, the information also contained an allegation that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b), and the information contained an allegation appellant had two prior felony convictions within the meaning of section 1203, subdivision (e)(4), thereby rendering him ineligible for probation except under certain conditions.

With two prior strikes, appellant faced a possible life term in prison. Before accepting a change of plea on October 13, 2006, the trial court agreed to strike the older of appellants two prior convictions, citing appellants acceptance of responsibility, the scale of the offense, the nature and timing of appellants prior strikes, and appellants exposure with one remaining strike. Pursuant to a plea bargain, appellant pled guilty to count 1 ( 245, subd. (a)(1)) and count 2 ( 422) of the information with the understanding the maximum sentence he could receive would be 24 years 4 months.

He admitted the allegation as to count 1 he had personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (e). As to both counts 1 and 2, appellant admitted two prior serious or violent felony convictions within the meaning of section 667, subdivision (a)(1), one prior strike ( 667, subds. (b)(i), 1170.12, subds. (a)(d)), two prior prison terms served within the meaning of section 667.5, subdivision (b), and two prior felony convictions within the meaning of section 1203, subdivision (e)(4).

Before appellant entered his plea, the trial court advised him of the constitutional rights he would waive by agreeing to the plea bargain. Appellant had also signed a written plea form, acknowledging and waiving his rights. Appellants trial counsel stipulated to a factual basis for the plea based on the preliminary hearing transcript. The court accepted appellants plea.

On December 28, 2006, appellant invited the trial court to exercise its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike the remaining prior strike. The trial court declined to strike appellants remaining prior serious or violent felony conviction, stating its reasons on the record at a hearing on December 29, 2006.

At the sentencing hearing, the trial court denied probation and sentenced appellant on count 1 ( 245, subd. (a)(1)) to the middle term of three years in state prison, doubled to six years pursuant to the Three Strikes Law ( 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court imposed a consecutive sentence of three years on count 1 for the great bodily injury sentence enhancement ( 12022.7, subd. (e)). On count 2 ( 422), the court sentenced appellant to the middle term of four years but stayed execution of the sentence pursuant to section 654. The court also imposed two consecutive five-year terms for prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and it stayed imposition of the two section 667.5, subdivision (b) enhancements for prior prison terms served. The total term thus imposed was 19 years in state prison.

In addition, the trial court imposed a restitution fine of $5,000 pursuant to section 1202.4, subdivision (b), and imposed a parole revocation fine in an equal amount under section 1202.45, suspended unless appellants parole is revoked. The court also imposed a security fee of $40 ( 1465.8, subd. (a)(1)) and ordered appellant to provide DNA samples ( 296). Appellant received presentence credit of 643 days, composed of 429 actual days served plus 214 days for work-time credit ( 4019).

Appellant filed a timely notice of appeal. There is no indication in the record that he sought a certificate of probable cause.

Discussion

Appellants counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. Appellants counsel advised appellant he could file a supplemental brief within thirty days of the filing of the opening brief.

We filed an opinion in this matter on August 22, 2007, in which we concluded that no issues merited further briefing. We noted that appellant had been given the opportunity to file a supplemental brief but had not done so. On September 5, 2007, following the issuance of our decision, we received a letter from a staff attorney with the First District Appellate Project reporting that his office had received from appellant on July 25, 2007, an original and copies of a supplemental brief. No such supplemental brief had been filed with this court. According to the staff attorney, it was apparent that appellant mistakenly believed that the First District Appellate Project was the same as the Court of Appeal for the First Appellate District. Both the staff attorney at the First District Appellate Project and appellants appointed counsel assumed appellant had filed the original of his supplemental brief with this court, when in fact he had not done so. The staff attorney realized the error when he was preparing to include a copy of our opinion in his files, and he has now provided us with the original and copies of appellants supplemental brief.

It is unclear whether we have any obligation to consider appellants supplemental brief, which he mistakenly sent to the First District Appellate Project instead of this court. Nevertheless, in an abundance of caution, we have agreed to rehear this matter on our own motion so that we may consider appellants contentions.

In his supplemental brief, appellant contends he should be allowed to withdraw his plea because he received ineffective assistance of counsel. In a declaration accompanying his brief, appellant asserts, among other things, that his appointed trial counsel failed to develop meritorious defenses, failed to communicate adequately with him, and failed to fulfill professional duties and obligations. He also claims that his plea resulted from misrepresentations on the part of public officials, and he claims the prosecutor and the court violated the terms of his plea bargain. In his brief, appellant contends his trial counsel misadvised [appellant] of the amount of time [appellant] would have to do under the plea bargain.

Appellant provides no factual support for his conclusory claims, for which we find no support in the record.[2] With regard to the contention appellant was misadvised of the amount of time he would have to serve under the plea bargain, the record reveals that appellant agreed to the plea with an understanding of the maximum sentence he could serve. When the court advised appellant he might have to spend up to 24 years 4 months in prison as a result of his plea, appellant responded that he understood. Appellant also told the court he understood that he would have to serve 85 percent of his sentence before he could become eligible for parole. There is nothing in the record on appeal to indicate appellants trial attorney told appellant anything different.

To the extent appellants claims of ineffective assistance of counsel are supported by evidence outside the record on appeal, they are properly addressed, if at all, in a petition for a writ of habeas corpus. However, even if we were to construe appellants supplemental brief as a habeas petition, we would still be compelled to summarily deny the petition because appellants vague and conclusory allegations do not make out a prima facie case for habeas relief. Further, appellant has not demonstrated either that his counsels performance was deficient or that, but for his counsels alleged incompetence, he would have rejected the guilty plea and proceeded to trial. (See In re Resendiz (2001) 25 Cal.4th 230, 239, 253.)

Having reviewed the entire record and considered the contentions in appellants supplemental brief, we conclude there are no arguable issues that warrant further briefing.

Disposition

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Siggins, J.

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Horner, J.*

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] After we filed our original opinion in this matter, appellant sought an extension of time to prove [his] claim in [his] Supplemental Brief. Because there is no support for appellants contentions in the record on appeal, we conclude no purpose would be served by granting appellant additional time to locate support in the record for his claims. To the extent he seeks to prove his claims by reference to evidence outside the record on appeal, the claims are not cognizable on direct appeal from the judgment. Accordingly, appellants motion is denied.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.