P. v. Wheeler

Filed 4/5/07 P. v. Wheeler 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In case No. FVI020225, the District Attorney of San Bernardino County filed a complaint, charging defendant and appellant, David Charles Wheeler, with violating Health and Safety Code sections 11350, subdivision (a) (count 1 ‑‑ possession of cocaine base) and 11550, subdivision (a) (count 2 ‑‑ under the influence of a controlled substance). In case No. FWV035766, the San Bernardino County District Attorney filed another complaint against defendant; it alleged violations of Penal Code sections 666 (count 1 ‑‑ petty theft with a prior) and 459 (count 2 ‑‑ commercial burglary).

Defendant, represented by counsel, pled guilty to (1) possession of cocaine base, count 1, in case No. FVI020225, and (2) petty theft with a prior, count 1, in case No. FWV035766. Thereafter, defendant filed a motion to withdraw the pleas. The trial court denied the motion.

Defendant subsequently appealed, and his application for a certificate of probable cause was denied. Defendant filed an amended notice of appeal challenging his sentence.

I

FACTUAL AND PROCEDURAL HISTORY

A. Case No. FVI020225

On March 25, 2004, San Bernardino County Sheriffs deputies were patrolling the downtown area of Victorville. They contacted defendant, who was walking down the street. Defendant confirmed that he was currently on active parole. Deputies conducted an evaluation and determined that defendant displayed signs and symptoms of being under the influence of a central nervous stimulant.

After a search of defendants person, the deputies located a piece of plastic containing a whitish/yellowish rock-like substance in his front coin pocket. The item appeared to be rock cocaine; it later tested positive for rock cocaine.

On November 2, 2004, defendant was charged in a felony complaint for violating Health and Safety Code sections 11350, subdivision (a) (count 1 ‑‑ possession of a controlled substance, cocaine base) and 11550, subdivision (a) (count 2 ‑‑ under the influence of a controlled substance). The complaint also alleged that defendant had suffered two prior convictions within the meaning of Penal Code section 667.5, subdivision (b).

On May 5, 2005, defendant entered into a plea agreement. Defendant pled guilty to count 1. In exchange, the prosecution agreed to dismiss count 2 and to have the prison priors stricken. Moreover, defendant would receive probation with 90 days in jail.

On November 8, 2005, the trial court allowed defendant to withdraw his guilty plea.

Following a preliminary hearing, an information was filed on December 27, 2005; it realleged the same counts and allegations against defendant, as set forth in the original complaint.

Defendant then entered into another plea agreement. Defendant pled guilty to count 1. In exchange, the prosecution agreed to dismiss count 2 and the priors. Moreover, defendant would receive a 16-month sentence, to run concurrent to the sentence in case No. FWV035766.

B. Case No. FWV035766

On April 28, 2005, Anthony Gamez was the loss prevention officer for Costco in Montclair, California. Gamez observed defendant, who was accompanied by a woman, come into the store, walk over to the liquor department, remove a bottle of tequila, and hide it in his jacket. Defendant then took some bottles off the shelf and placed them in the cart for the woman. She then concealed the bottles in her purse. Thereafter, both the woman and defendant proceeded to walk out of the store without paying for the items.

Gamez stopped defendant and the woman. Gamez asked defendant if he knew why he was being stopped. Defendant nodded yes. Defendant then stated that he needed money for rent. The total price of the liquor bottles came to $389.

On September 26, 2005, defendant was charged in a felony complaint with violations of Penal Code sections 666 (count 1 ‑‑ petty theft with a prior) and 459 (count 2 ‑‑ commercial burglary). The complaint also alleged that defendant had suffered three prior convictions within the meaning of Penal Code section 667.5, subdivision (b). On November 3, 2005, following the preliminary hearing, an information was filed against defendant; it alleged the same counts and allegations as the complaint.

On December 27, 2005, defendant entered into a negotiated plea agreement. Defendant was advised that he faced up to six years eight months in state prison. Defendant pled guilty to count 1 (petty theft) in exchange for a dismissal of count 2 and the prison priors. The parties agreed that defendant would receive a sentence of 16 months, which would run concurrent with case No. FVI020225.

C. Motions to Withdraw the Pleas and Sentencing

On January 6, 2006, defendants trial counsel informed the court that defendant wished to withdraw his guilty pleas from both cases. The trial court appointed conflict counsel to review and determine whether defendant had grounds to withdraw his pleas. On March 10, 2006, the trial court denied defendants motion to withdraw his guilty pleas.

Defendant was immediately sentenced to the agreed upon term of 16 months for both cases. Restitution fines in the amount of $200 were imposed. As to case No. FVI020225, defendant received 160 days of actual credit, plus 80 days of Penal Code section 4019 credit, for a total of 240 days of presentence custody credit. Credit determination was continued in case No. FWV035766. On April 4, 2006, the parties agreed that a total of 216 days of presentence custody credit should be given to defendant in that case.

On March 23, 2006, defendant filed a notice of appeal challenging the validity of the plea agreements. Defendant wrote the following as grounds for a certificate of probable cause:

I did not want to make a deal, But [sic] my grandmother was dieing [sic] so I wanted to see her[.] I said this, so I was told that I could get out on a waver [sic] if I made a deal and most important I am not guilty[.] I have been in jail for 5 months with out [sic] a fair hearing[.] No one has had time to see me talk to me[.] Help if some [sic] reads my file they will see why I should be freeded [sic][.] The judge at Rancho Court Div. 19[,] Judge Cole[.] I was a free man[.] Called me a minise [sic] to society and said I was going to prison. I had no warrants[.] Why did he say that and arrest me.

Defendants request for a certificate of probable cause was denied on April 7, 2006. Defendant filed an amended notice of appeal on April 28, 2006, challenging the sentence.

II

ANALYSIS

After defendant 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.

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.

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

/s/ Richli

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

J.

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