P. v. Rasberry

Filed 2/23/06 P. v. Rasberry CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler, Judge. Affirmed.

Marliee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant James Edward Rasberry.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Samuel Martin.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Charles C. Ragland, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a negotiated plea agreement, defendants Rasberry and Martin both pleaded guilty to two counts of robbery (Pen. Code, § 211)^[1] (counts 1 & 3) and admitted the allegation that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)) in the commission of count 1; in exchange, the remaining 23 counts and numerous enhancement allegations were dismissed,^[2] and defendants were promised a sentence of 15 years in state prison. Thereafter, in accordance with the plea agreement, the trial court sentenced defendants Rasberry and Martin each to a total term of 15 years in state prison as follows: the upper term of five years on count 1, plus an additional 10 years for the firearm enhancement, and a concurrent middle term of three years on count 3.

Approximately two weeks after judgment was imposed, the trial court received a handwritten letter and handwritten one-page motion from defendant Rasberry requesting to withdraw his plea. The trial court denied that motion as untimely pursuant to section 1018. Defendant Rasberry thereafter filed a notice of appeal and obtained a certificate of probable cause.

On appeal, defendant Rasberry contends (1) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed an upper term sentence on count 1, and (2) the trial court erred in denying his motion to withdraw his guilty plea as untimely.

Defendant Martin also 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 (87 S.Ct. 1396, 18 L.Ed.2d 493) 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. Defendant Martin also filed a personal supplemental brief, which we have read and considered.

I

FACTUAL BACKGROUND^[3]

Defendant Rasberry, a Compton Avenue Crips gang member, and defendant Martin, a Five Deuce Broadway Gangster Crips gang member, along with two other Crips gang members, entered and robbed the Vineyard National Bank in Rancho Cucamonga. During the bank robbery, one of the robbers pointed a gun at bank teller N.A. (the victim in count 1) and knocked her to the ground before stealing cash from her teller drawer. Another one of the armed assailants ordered customer Alfredo A. (the victim in count 3) to the floor, and one of the men took the ring and bracelet Alfredo was wearing.

The defendants thereafter fled, and a police pursuit ensued. The high-speed pursuit ended in Echo Park when the assailants' vehicle rear-ended another car stopped at a traffic light. The defendants fled in different directions but were eventually apprehended.

A handgun was found in the vehicle occupied by defendants. In addition, money was found on the floorboard of the car and in the trunk as well as dark stockings, a black glove, and shirts. The police also discovered an empty bucket in the trunk of the car, and the entire trunk area was wet. Such buckets are normally filled with water, and the stolen money is placed inside so that it is not ruined when the dye packs go off. The cash stolen from the bank was approximately $11,000.

As defendant Martin was being driven to the police station, he stated there was a gun in the car and admitted being the driver of the vehicle. He also asserted that he could have escaped if he wanted and that someone had given them information the bank was a good target.

II

DISCUSSION

A. Defendant Rasberry's Appeal

1. Violation of Blakely and Apprendi

Pursuant to the plea agreement, the trial court here selected the upper term of five years on count 1 ‑‑ the robbery (§ 211) conviction as to victim N.A. Defendant Rasberry contends the court improperly imposed the upper term because the court based its decision on factors not found true by a jury, as allegedly required by Apprendi, supra, 530 U.S. 466 and Blakely, supra,. 542 U.S. 296. He thus claims the court violated his constitutional rights to a jury trial and due process and that the error is reversible per se.

Following the filing of defendant's opening brief, our Supreme Court decided these issues adversely to him in People v. Black (2005) 35 Cal.4th 1238. The court summarized its decision as follows: â€