Filed 9/29/17 P. v. Marshall CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant, Nicholas Marshall, in a plea to the court, pled guilty to three counts of first degree burglary (counts 1, 3, & 4; Pen. Code, § 459),[1] one count of receiving stolen property (count 2; § 496, subd. (a)), and one misdemeanor count of vandalism (count 5; § 594, subd. (b)(1)). Defendant additionally admitted that, with respect to the count 3 offense, another person, other than an accomplice, was present. (§ 667.5, subd. (c)(21).) With respect to counts 3 and 4, defendant admitted he was out on bail while he committed the offenses. (§ 12022.1.) Finally, defendant admitted he had suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), a prior serious felony conviction (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to imprisonment for 16 years four months.

After defendant and counsel for Appellate Defender’s, Inc. filed separate notices of appeal,[2] 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 facts and a statement of the case. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 2, 2013, defendant entered an inhabited home with the intent of committing a theft. On the same day, defendant possessed stolen property. On February 3, 2014, defendant entered an inhabited home, while someone was inside, with the intent to steal something. On the same day, defendant entered another inhabited home with the intent to steal.

On December 20, 2013, the People charged defendant by felony complaint with first degree burglary and receiving stolen property. The People additionally alleged defendant had suffered two prior prison terms. (§ 667.5, subd. (b).) On February 19, 2014, the court held a hearing on defendant’s Marsden[3] motion. Defense counsel noted that defendant was currently facing exposure to 12 years four months’ incarceration; however, the People were offering a deal for three years’ imprisonment. Defendant wished counsel to counteroffer a suspended sentence; however, defense counsel observed that the People had failed to discover a prior strike conviction which would greatly increase defendant’s exposure. The court denied the Marsden motion. On March 24, 2014, the People filed a first amended complaint in which they alleged the prior strike conviction and prior serious felony conviction, both of which arose out of the same conviction. On April 18, 2014, the People filed a felony information which alleged two additional burglaries, another person present allegation, and a vandalism charge.

On April 22, 2014, defense counsel raised an issue regarding defendant’s mental competence to stand trial. The court declared a doubt regarding defendant’s mental competency, suspended proceedings, and appointed a doctor to examine defendant. On May 13, 2014, psychologist Dr. Tseday Aberra filed a report in which she concluded defendant was competent to stand trial. On May 15, 2014, defense counsel requested the appointment of another doctor to examine defendant. The court granted the request. On June 6, 2014, Dr. Jennifer Bosch filed a report in which she opined defendant was presently in a paranoid state, experiencing active symptoms of psychosis. She concluded that defendant should be medicated to determine if his symptoms abated.

On June 12, 2014, the court appointed a third doctor to evaluate defendant. On July 9, 2014, Dr. Harry Goldberg field a report in which he concluded defendant was unable to understand the nature of the court proceedings due to his mental disorder. On September 29 and 30, and October 3, 2014, the court held a trial regarding defendant’s mental competency to stand trial. All three doctors who filed reports testified. The court found defendant mentally incompetent to stand trial.

On October 6, 2014, the court appointed a fourth doctor to examine defendant. On October 31, 2014, Dr. Seaaira Reedy filed a report recommending that defendant be referred to a competency program “to receive competency training in a locked forensic setting.” On November 3, 2014, Dr. Harvey Oshrin filed a report in which he likewise recommended defendant receive treatment. On November 6, 2014, the court again found defendant mentally incompetent to stand trial and ordered defendant committed to treatment.

On June 4, 2015, Dr. Ana Kodzic, filed a report in which she opined that defendant was “closely approaching restoration to competency . . . .” On July 10, 2015, Dr. David Fennell filed a certification of defendant’s mental competency to stand trial, along with supporting reports. On July 15, 2015, the court reinstated proceedings. On September 8, 2015, defense counsel declared a doubt about defendant’s mental competency to stand trial. After an in camera hearing on September 15, 2015, the court found defendant competent to stand trial.

On September 18, 2015, defendant requested to proceed in propria persona. The court granted his request, but shortly thereafter retracted its ruling and reappointed counsel for defendant. On October 20, 2015, defendant requested another Marsden hearing. After holding a Marsden hearing, the court denied defendant’s request for new counsel. On the same date, defendant moved for the assignment of a new judge pursuant to Code of Civil Procedure section 170.6. The court granted the request.

On October 27, 2015, defendant filed another request to proceed in propria persona. The court granted the request that day. On February 22, 2016, defendant requested reinstatement of a public defender; the court granted the request.

On May 10, 2016, defendant pled to the sheet as recounted above. As part of the agreement between the court and defendant, the court released defendant from custody after he entered his pleas with the understanding that if defendant showed up at the sentencing hearing scheduled for June 13, 2016, he would be sentenced to 14 years four months’ incarceration. However, if defendant failed to appear, the court would sentence him to 25 years eight months’ imprisonment.

Defendant failed to show at the sentencing hearing. The court issued a bench warrant for defendant’s failure to appear. Defendant appeared in custody on December 5, 2016. During an in camera hearing prior to sentencing, defendant moved to withdraw his plea based, in part, on ineffective assistance of counsel, which the court denied. For reasons discussed in chambers and off the record, the court decided not to sentence defendant to the maximum and sentenced him instead to 16 years four months’ incarceration.

II. DISCUSSION

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 independently reviewed the record for potential error and find no arguable issues.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P.J.

We concur:

MILLER

J.

SLOUGH

J.