P. v. Williams

Filed 4/13/07 P. v. Williams CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Shasta)

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At a New Years Eve party, an argument between defendant, 19-year-old Gary Wayne Williams, and the victim led to their pushing one another. According to the victims brother, defendant pushed the victim through a glass window. The victim was seriously injured with numerous cuts. Defendant then punched and wrestled the victim. The victims brother intervened and defendant fled the scene. Another witness claimed the argument began when the victim mocked defendant about the way he was dancing, the two shoved one another, and that the fight was mutual. Defendant called the police and reported that he had been involved in a fight with the victim, which began when the victim teased defendant about his dancing. Defendant claimed the fight was mutual, each pushing and slugging the other. Defendant denied pushing the victim through the window; instead, defendant claimed he stepped aside when the victim charged towards defendant and the victim fell through the window. They continued to fight after the victim fell through the window.

Defendant entered a negotiated plea of guilty to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1); undesignated section references are to this code) and admitted personally inflicting great bodily injury ( 12022.7) in exchange for a sentencing lid of five years in state prison.

After the probation report was filed recommending a state prison sentence of two years, defendant obtained new counsel and filed a motion to withdraw his plea. Defendant claimed that counsel failed to interview certain witnesses to support defendants claim of self-defense. Had the witnesses been interviewed, defendant claimed he would have proceeded to trial. Thus, defendant asserted that he was not fully informed, received inadequate advice and entered a plea that was not voluntary.

The prosecutor opposed the motion, arguing that the newly interviewed witnesses were cumulative and consistent with statements by defense witnesses who had previously been interviewed. The prosecutor further argued that newly discovered evidence did not amount to good cause to support a motion to withdraw a plea and that defendant had failed to demonstrate prior counsels performance was deficient.

After a hearing at which former counsel but not his investigator testified, the court denied defendants motion to withdraw his plea, determining that the newly discovered evidence proffered did not amount to good cause to withdraw the plea. The court noted that the testimony of the investigator was needed to learn whom he did and did not interview and if not, the reason.

The court thereafter proposed an alternative to the sentencing agreement, which defendant accepted. The court imposed the upper term of four years for the offense plus a three-year enhancement, suspended execution, and granted probation for a term of five years subject to certain terms and conditions including 365 days in jail.^[1]

Defendant appeals. His request for a certificate of probable cause ( 1237.5) was granted.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

ROBIE , J.

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^[1] The court imposed the upper term based on defendants prior record, which included a prior juvenile adjudication for second degree burglary and misdemeanor battery when defendant was about 15 years old.