P. v. McElveen

Filed 6/19/07 P. v. McElveen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant appeals from the judgment entered after his guilty plea. His counsel raises no issues and asks this court for an independent review of the record as required by People v.Wende (1979) 25 Cal.3d 436.

BACKGROUND

On November 12, 2005, appellant and his wife, Angela Pree, drove together to a Bank of America branch in Corte Madera. When the two arrived at the bank, Pree asked appellant to purchase a money order to pay the phone bill. Appellant entered the bank while Pree waited outside in the car. Subsequently, Pree entered the bank to remind appellant to purchase the money order. Appellant became agitated and left the bank with Pree.

Appellant and Pree got into a verbal argument outside the bank. Appellant struck Pree with his closed fist and hit Pree on the right side of her mouth. Pree was knocked backward by the blow and fell onto the hood of the car behind her before landing on the ground. Pree was incapacitated for about five minutes, then she managed to lean on a rail on the side of the street until the paramedics and law officers arrived at the scene.

Pree suffered injuries to the right side of her mouth as a result of appellants assault. Prees upper and lower lips were cut and bleeding. There were drops of blood on the sidewalk.

Appellant was arrested on November 16, 2005, while sleeping in Prees house. Appellant was charged with a felony criminal offense of inflicting corporal injury to his spouse and causing a traumatic condition upon her as a result of the infliction. (Pen. Code, 273.5, subd. (a).) Appellant was also charged with four counts of misdemeanor offenses: committing battery on his spouse, violating a domestic relations court order, and committing contempt of court by willful disobedience of a court order and process in two cases. (Pen. Code, 243, subd. (e)(1), 273.6, subd. (a), 166, subd. (a)(4).)

On December 2, 2005, sufficient cause was established to believe that appellant had committed the charged offenses and that there was reasonable cause to believe that appellant is guilty of the violations. Appellant was held to answer and moved to reduce the felony offense to a misdemeanor under Penal Code section 17, subdivision (b), but the motion was denied without prejudice.

On January 31, 2006, appellant entered into a plea bargain while represented by his counsel. Appellant pleaded guilty to all five of the charged offenses. Appellant was informed of his legal and constitutional rights, including his right to a jury trial; and he waived his rights. Appellants guilty pleas and his waivers of rights were made knowingly, intelligently and voluntarily. After appellant pleaded guilty to the charged offenses, the court indicated to appellant that no state prison term would be imposed for the offenses unless appellant violates his probation. Appellant remained in custody pending sentencing.

Appellant later moved to withdraw his guilty plea, claiming that the plea was entered because of mistake, ignorance, and inadvertence. (Pen. Code, 1018.) Appellant argued that as a result of receiving bad advice from his attorney, appellant believed that he would be released from custody upon pleading guilty on January 31, 2006. Instead, appellant was kept in custody after his plea. Appellant also argued that his attorney did not inform him that a guilty plea would adversely affect appellants pension from the Veterans Administration. Appellant contended that he could not receive his pension payments while incarcerated for a criminal conviction. Appellant asserted that he would not have entered the guilty plea absent these misunderstandings.

The motion to withdraw plea was denied on April 26, 2006. The trial court concluded there was no relevant mistake or misunderstanding at the time of the plea because appellant indicated to the court that he understood the terms of his plea. The adverse effect on appellants veterans benefits was a collateral consequence to appellants plea that was unrelated to the present criminal proceedings. The court concluded that appellants counsel had no control over this collateral consequence and that appellant cannot withdraw his guilty plea on the basis that he was not advised of a possible consequence collateral to his plea.

On May 5, 2006, appellant was placed on supervised probation for a period of three years subject to standard terms and conditions. The time served since appellants arrest on November 16, 2005 was imposed. In addition, appellant was ordered to make several payments: restitution to the assault victim Angela Pree, a court security fee, a restitution fine, a payment to the domestic violence fund, probation and community service fees, and a probation revocation restitution fine effective upon probation violation. Lastly, appellant was required to perform community service, attend a batterers program, abstain from alcohol during probation, undergo treatment, therapy, or counseling as directed by the probation department, and not to contact, annoy, harass, threaten, or disturb the peace of Pree.

Appellant filed a timely notice of appeal on July 5, 2006. The opening Wende brief was filed on March 26, 2007.

Our independent review of the record reveals no arguable issues.

Accordingly, the judgment is affirmed.

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Lambden, J.

We concur:

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Kline, P.J.

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Haerle, J.

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