P. v. Spiers

Filed 7/16/07 P. v. Spiers CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

JOHN EDWARDS SPIERS,

Defendant and Appellant.

E042417

(Super.Ct.No. FNE004427)

OPINION

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed.

Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL BACKGROUND

In the course of investigating the possibility that utility pole ground wires were being stolen and then sold to a recycling center in Needles, the San Bernardino County Sheriffs Department contacted the recycling center and learned that the center had received suspicious wire scrap metal from certain individuals whom employees were able to describe. The following day, defendant and his coparticipant were contacted at the same recycling center and questioned. Defendant insisted that he had obtained the wire off downed poles left in the desert.^[1]

Defendant was arrested and charged with grand theft of personal property (Pen. Code, 487, subd. (a)) and receiving stolen property (Pen. Code, 496, subd. (a)).

Subsequently, defendant, represented by counsel, pleaded no contest to receiving stolen property (Pen. Code, 496, subd. (a)) in exchange for a maximum prison lid of no more than two years in state prison. Following a sentencing hearing, defendant was sentenced to two years in state prison.

Defendant appealed from matters occurring after the plea or based on the sentence, failed to obtain a certificate of probable cause, 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.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant makes arguments related to four purported arguable issues: (1) failure to see the judge in a timely manner; (2) his innocence, (3) the pressure he felt by the officer in charge in pleading guilty, and (4) his unfair sentence. We have reviewed the entire record and the contentions both of counsel and defendant, and we have found no arguable issues.

ANALYSIS

Other than search and seizure issues specifically reviewable under [Penal Code] section 1538.5, subdivision (m), all errors arising prior to entry of plea of guilty or nolo contendere are waived by the plea, except those based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings . . . . (People v. Shults (1984) 151 Cal.App.3d 714, 718-719; see also 1237.5, subd. (a); People v. Kaanehe (1977) 19 Cal.3d 1, 9; People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.) Essentially, issues relating to a defendants guilt or to the procedure in establishing guilt are not cognizable on appeal following a change of plea. (DeVaughn, at p. 896; People v. Wakefield (1987) 194 Cal.App.3d 67, 69-71.) The reason for the rule is that either plea admits all matters essential to the conviction. (DeVaughn, at p. 895; see also People v. LaJocies (1981) 119 Cal.App.3d 947, 956; 1016.) Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty. (Kaanehe, at p. 9.) Matters waived by these pleas also include the right to a speedy trial. (People v. Hayton (1979) 95 Cal.App.3d 413, 417-419; People v. Lee (1980) 100 Cal.App.3d 715, 717-718.) The cases are virtually uniform in holding that a claim of speedy trial violation â€‘â€‘ whether statutory or constitutional â€‘â€‘ does not survive a guilty plea. (See e.g., People v. Stittsworth (1990) 218 Cal.App.3d 837, 841 [statutory]; Lee, at p. 717 [constitutional]; Hayton, at p. 419 [both].)

Defendants claim that the court abused its discretion in sentencing him to two years in state prison rather than placing him on probation is likewise not well taken. The decision to grant or deny probation rests within the broad discretion of the trial court, and that decision will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316, italics omitted.) A defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A sentence will not be reversed merely because reasonable people might disagree with the trial courts decision. (Id. at p. 978.) To exercise the power of judicial discretion, all of the circumstances of the offenses and defendants participation therein must be considered. (People v. Strunk (1995) 31 Cal.App.4th 265, 275.) After a thorough review of the record, we find defendant cannot show that the trial court abused its discretion in denying probation and sentencing him to state prison pursuant to his no contest plea agreement.

We have now concluded our independent review of the record and find no arguable issues.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

KING

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^[1] The factual background is taken from the probation officers report.

Description	In the course of investigating the possibility that utility pole ground wires were being stolen and then sold to a recycling center in Needles, the San Bernardino County Sheriffs Department contacted the recycling center and learned that the center had received suspicious wire scrap metal from certain individuals whom employees were able to describe. The following day, defendant and his coparticipant were contacted at the same recycling center and questioned. Defendant insisted that he had obtained the wire off downed poles left in the desert. Defendant was arrested and charged with grand theft of personal property (Pen. Code, 487, subd. (a)) and receiving stolen property (Pen. Code, 496, subd. (a)). Subsequently, defendant, represented by counsel, pleaded no contest to receiving stolen property (Pen. Code, 496, subd. (a)) in exchange for a maximum prison lid of no more than two years in state prison. Following a sentencing hearing, defendant was sentenced to two years in state prison. Defendant appealed from matters occurring after the plea or based on the sentence, failed to obtain a certificate of probable cause, 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. Court offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant makes arguments related to four purported arguable issues: (1) failure to see the judge in a timely manner; (2) his innocence, (3) the pressure he felt by the officer in charge in pleading guilty, and (4) his unfair sentence. Court have reviewed the entire record and the contentions both of counsel and defendant, and Court have found no arguable issues.
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