P. v. Reyna

Filed 3/8/07 P. v. Reyna CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas James Borris, Judge. Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Rudy Renya filed a notice of appeal with this court following convictions for two counts of aggravated assault against the same victim (counts one and three) (Pen. Code, 245, subd. (a)(1)) (subsequent statutory references are to the Penal Code), one count of domestic battery with corporal injury with prior conviction (count two) ( 273.5, subd. (a)), and one count of criminal threats (count four) ( 422). Count four alleged great bodily injury, and count three specified the assault involved the use of a deadly weapon. The information also alleged four strike priors, two prison priors, and two serious felony priors.

One of the priors, alleged as both a serious felony and a strike prior, was from Texas. Because it was not a serious felony under California law, the court dismissed the associated strike prior and serious felony prior allegations.

Defendant then pled guilty to all charges and admitted all enhancements in exchange for a stipulated sentence of 17 years and four months. In the interests of justice, the court struck two of defendants three remaining strike priors based on the same 23-year-old incident and one prison prior. The sentence was comprised of an

eight-year term for count one (the four-year upper term, doubled), a consecutive term of two years for count three (one-third the two-year midterm, doubled), a consecutive term of 16 months for count four (one-third the midterm of two years, doubled), a consecutive term of one year for the remaining prison prior, and a consecutive five-year term for the remaining serious felony prior. Pursuant to section 654, the court stayed a six-year sentence for count two. A request for a certificate of probable cause was not granted.

( 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendants behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given 30 days to file written argument on his own behalf, and did so, which we shall address below.

Defendant raised a number of issues relating to his guilty plea. His essential argument is that he was coerced into pleading guilty because he was told that he could receive a sentence of 82 years to life if his 1979 conviction was classified as a serious felony under section 1192.7, subdivision (c). He claims this is incorrect because that section was not adopted until 1982, and therefore, his priors cannot be classified as serious felonies, because such a designation did not exist at the time. This argument confuses several legal points, but we cannot consider it here because what his attorney told him is not reflected in the record. Defendant must raise these issues in a habeas petition. (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.)

Defendant also claims he was punished by the court for bringing a motion pursuant to People v. Marsden, (1970) 2 Cal.3d 118, in December 2004. An offer of 11 years was apparently withdrawn after the court concluded defendant was not seriously interested in disposing of the case at that time. The plea agreement defendant later entered into, in May 2005, was for a sentence of 17 years and four months. We have reviewed the hearing transcript, and based on that review conclude the court was correct that defendant was not seriously interested in entering into a plea agreement at that time. Everything about defendants comments indicated he intended to challenge the charges against him. Thus, the withdrawal of the offer was not punishment. Moreover, this is not an issue that can be raised on appeal after a guilty plea without a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

We have examined the record ourselves to find any arguable issue. Defendant was represented by counsel and appropriately advised of his constitutional rights. In addition to the written plea form, the court expended considerable effort to ensure defendant was aware of his rights and the consequences of pleading guilty. Defendant indicated he had no questions about the form or the agreement, and the form reflects an appropriate factual basis for the plea. The transcript does not indicate any other irregularities in the proceedings.

We therefore fail to find any arguable issues, particularly any that defendant might have raised without a certificate of probable cause. We therefore affirm.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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