P.v . McGonagle
Filed 4/4/07 P.v . McGonagle CA4/1
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. SCOTT J. MCGONAGLE, Defendant and Appellant. | D049352 (Super. Ct. No. SCD193451) |
APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed.
After the trial court granted Scott J. McGonagle's motion to withdraw a guilty plea and the People reinstated the information, McGonagle entered a guilty plea to residential burglary (Pen. Code, 459/460)[1]and admitted a prior strike ( 667, subds. (b)-(i), 1170.12, 668) and prior serious felony conviction ( 667, subd. (a)(1)). In the plea agreement, McGonagle waived his right to appeal a stipulated sentence. The court sentenced him to a stipulated nine years in prison: double the two-year lower term for residential burglary with a prior strike, enhanced five years for the prior serious felony conviction. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On September 4, 2005, someone entered the Szulc's home and took property including wallets, cellular telephones and a breast pump. After McGonagle became a suspect through tracing telephone calls from one of the stolen cellular telephone, sheriff deputies went to his place of employment. McGonagle fled, and scuffled with pursuing deputies before his arrest. Because McGonagle entered a guilty plea, he cannot challenge the facts underlying the convictions. ( 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.
McGonagle admitted that in 1996 he was convicted in New Jersey of robbery.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether waiver of the right to appeal is valid; (2) whether the guilty plea is valid; (3) whether the trial court abused its discretion in denying the certificate of probable cause; (4) whether the sentence violated the prohibition on ex post facto laws; and (5) whether McGonagle was denied the right to effective assistance of counsel.
We granted McGonagle permission to file a brief on his own behalf. He has responded. McGonagle tells us he withdrew his initial guilty plea because his counsel had misrepresented the law regarding the 15 percent maximum conduct credit for a defendant with a prior violent felony conviction. ( 667.5, subd. (c), 2933.1, subd. (a).) He also claims that someone altered his initial plea bargain form after he signed and initialed the form. Even if we assume McGonagle is correct regarding his trial counsel misrepresenting the law and that someone altered the initial guilty plea form, the trial court cured the errors when it permitted McGonagle to withdraw the initial guilty plea. (See 1018.) Regarding the guilty plea under review here, McGonagle, argues that the reporter's transcript of the October 3, 2005 hearing (when the initial plea bargain was entered) was not transcribed. McGonagle cites to a letter from Appellate Defenders to the court notifying it that the October 3 transcript had not been included in the record. The trial court thereafter added a transcript of the October 3 hearing to the record. It does not affect the validity of the guilty plea McGonagle entered on July 5, 2006. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues McGonagle raises, has disclosed no reasonably arguable appellate issue. Competent counsel has represented McGonagle on this appeal.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
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[1] All statutory references are to the Penal Code.
