Filed 8/8/17 P. v. Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA D. WILLIAMS,

Defendant and Appellant.
D070925



(Super. Ct. No. SCD266665)

APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.

Joshua D. Williams appeals from a judgment following his guilty plea to one count of attempted robbery. The trial court sentenced him to 16 months in prison and imposed various fines and fees. Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Williams has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
Williams was charged with one count of attempted robbery arising from an incident that occurred on April 20, 2016, in front of a Home Depot store in the Sports Arena area. It was alleged that Williams had six prior felony convictions and had served two prior prison terms.
Preliminary Hearing
Williams represented himself at the May 5, 2016 preliminary hearing. At the outset, Williams requested a continuance based on a claim the prosecution had produced discovery to him just two days earlier. The prosecution explained it had made the discovery available via its e-discovery portal one week before the hearing, and further explained the discovery consisted of only three police reports totaling 15 pages. The court denied the request, finding Williams had sufficient time to review what "by all accounts [was] not a substantial amount of discovery."
The prosecution called two witnesses. Angel Vallejo testified that at about 9:55 p.m. on April 20, 2016, he was waiting in the parking lot in front of the Home Depot for his shift to begin. Vallejo observed Williams approach the parking lot attendant and ask a question. Vallejo didn't hear the question, but heard the lot attendant respond, "No." Vallejo then heard Williams ask the lot attendant, " 'Well, what if I just take it from you?' "
Vallejo saw the lot attendant walk away; Williams followed. As the lot attendant corralled shopping carts, Williams "hustled to catch up to" him, pulled out "something that looked like a stick," and "kind of lunged forward" toward the lot attendant. The stick did not strike the attendant, but came within about two feet of him. The lot attendant, who was carrying a large rope to pull the carts, turned around and swung the rope at Williams, hitting him in the torso. Williams dropped the stick, walked toward the store entrance, dropped a can of something on the ground, and walked into the store. Vallejo called 911.
Francisco Ocampo testified he was working as the Home Depot lot attendant on April 20. Ocampo said Williams "was yelling or saying something" that Ocampo could not initially understand. Williams then angrily asked Ocampo for money in "a threatening manner" that made Ocampo feel unsafe. Ocampo responded that he didn't have any money. Williams then said, "What about if I take it from you?" Ocampo saw "a stick-like object sort of poking out from" Williams's backpack and feared Williams was "trying to jump [him]." Out of fear, Ocampo responded, " 'I'll kill you,' " which he said was out of character for him because he wouldn't "kill a fly." Williams started making motions and yelled, "Kill me. Kill me m.f. Kill me." Ocampo tried to get away from Williams "to diffuse whatever was happening," but Williams followed him. Ocampo swung a rope intending only to scare Williams, but unintentionally struck him with it. Williams fell, looked a little dazed, then got up and went into the Home Depot to speak with the managers.
Police arrived within about five minutes of the incident and arrested Williams.
Williams called no witnesses. He argued about the circumstances of the incident, but the court explained the argument did not constitute evidence. Williams indicated he understood.
The court held Williams over for trial. The court found the case was close, but reasoned Ocampo's testimony established Williams had angrily demanded money from him in a threatening way that—at least for purposes of a preliminary hearing—"can reasonably educe that the victim had fear . . . ." Williams responded to the ruling, "That's understandable, Your Honor."
Guilty Plea and Sentencing
On June 10, 2016, Williams entered a guilty plea pursuant to a plea bargain. As part of that bargain, the prosecutor "agreed to not oppose a grant of formal probation and not oppose [Williams] being release on [his] own recognizance pending sentencing, at which time, if [Williams] appeared at sentencing, [he] would receive credit for time served." However, the plea bargain was subject to a Cruz waiver (see People v. Cruz (1988) 44 Cal.3d 1247), which provided that the sentencing portion of the bargain would be cancelled if Williams failed to appear for his probation interview or sentencing hearing. Williams failed to appear for both. Therefore, instead of sentencing him to probation and credit for time served, the court sentenced Williams at a continued sentencing hearing to the low term of 16 months in prison and imposed various fines and fees.
Lack of Probable Cause Certificate
Williams filed a notice of appeal in pro. per. Appellate counsel then filed an amended notice on his behalf that was corrected to request a certificate of probable cause in light of Williams's guilty plea. The trial court denied the request for a certificate of probable cause.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Counsel has identified the following issue that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): "That appellant should not have been bound over with the evidence presented at the preliminary hearing[,] but that issue did not survive his guilty plea."
After we received counsel's brief, we gave Williams an opportunity to file a supplemental brief. He has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. Williams has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.



HALLER, J.

WE CONCUR:



NARES, Acting P. J.



AARON, J.