P. v. Medina

Filed 12/10/07 P. v. Medina CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald Rose, Commissioner. Affirmed; petition denied.

Norberto Medina, in pro. per.; and Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

No Appearance for Plaintiff and Respondent.

* * * * * * * * * *

Appellant Norberto Medina pled no contest to second degree robbery, pursuant to a plea bargain, and thereafter tried unsuccessfully to withdraw the plea. He appealed. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising no issues. Appellant was notified that he could file his own supplemental brief and has done so. He also filed, in propria persona, a petition for writ of habeas corpus, In re Medina, No. B202061 (hereafter the writ petition). We will consider the writ petition along with the appeal.

Appellant was charged with carjacking, a serious felony (count 1); possession of a firearm by a felon (count 2); and possession of ammunition by a person who is prohibited from possessing a firearm (count 3). A 2001 conviction for robbery was alleged as a prior strike and for the purpose of sections 667, subdivision (a)(1) and 667.5, subdivision (b).^[1]

The plea was made prior to a preliminary hearing. The probation report summarizes these facts: The victim drove into the parking lot of a liquor store and went inside, leaving the engine of his car running. Appellant was in the lot and started to drive the victims car away. The victim came outside and jumped onto the car. He was knocked off it as appellant drove away. The car became stuck in traffic, and the victim forced appellant out of it. Appellant ran away. He was subsequently arrested at his home. A shotgun and a round of ammunition were found in his bedroom. He told the police that he saw the keys in the ignition of the victims car and stole it because the victim had looked at his (appellants) girlfriend in a flirtatious way. He intended to drop the car off around the corner and not to keep it. The victim grabbed the cars side mirror, but fell off when the mirror broke.

On October 30, 2006, pursuant to a plea agreement, a count of second degree robbery was added to the information as count 4, and appellant pled no contest to it. That crime is also a serious felony. Appellant further admitted the prior robbery conviction, both as a prior strike and for the purpose of section 667, subdivision (a)(1). The agreement specified a nine-year prison sentence, based on the low term of two years for second degree robbery, doubled for the strike, plus five years for the section 667 enhancement.

Appellant was represented by a deputy public defender when he made the plea. He later obtained private counsel. On December 28, 2006, that counsel filed a motion to vacate the plea. The motion argued that section 1192.7 prohibits plea bargaining in prosecutions for serious felonies unless certain exceptions are present, and none of those exceptions applied here. Those exceptions are if there is insufficient evidence to prove the peoples case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence. ( 1192.7, subd. (a)(2).)

On January 19, 2007, the court heard appellants motion to withdraw the plea. His counsel explained that appellant wanted to have a jury trial because he believed he was guilty of no more than joyriding. After hearing argument, the court found that the plea was valid because it fell within an exception of section 1192.7, as the jury might have convicted appellant of joyriding. It further ruled that appellant did not have the right to change his mind after accepting the plea. Appellant was then sentenced to the nine-year prison sentence specified in the plea with credit for time served. The remaining allegations were dismissed. This appeal followed.

DISCUSSION

1. The Appeal

As indicated, appellants counsel filed a Wende brief. Appellants in pro. per. supplemental brief maintains that the trial courts refusal to vacate the plea was an abuse of discretion and a denial of his Sixth Amendment right to trial by jury.^[2] He further argues that there was no factual basis for a finding that he committed robbery, and he cannot be convicted of robbery when he was not charged with robbery.

Appellants arguments lack merit. He pled no contest to a count of robbery that was added to the information prior to the plea. A robbery can be established by the use of force or fear while escaping with stolen property. (People v. Anderson (1966) 64 Cal.2d 633, 638; see also People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) Here, appellant did not initially use force to take the car, but he continued driving while the victim was clinging to it. Moreover, he was fully informed of his constitutional rights at the time of the plea and waived them. There was neither an abuse of discretion nor a violation of his constitutional rights.

After review of the entire record on appeal, we are satisfied that appellants attorney has fully complied with his responsibilities, and no arguable issues exist on appeal. (Smithv. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)

2. The Writ Petition

We will now refer to Mr. Medina as petitioner, rather than as appellant.

The writ petition is accompanied by a declaration by petitioner. He explains that he adamantly believed he was guilty only of joyriding (Veh. Code,  10851), but entered a plea to robbery because his deputy public defender threatened and coerced him, by telling him that if he did not accept the plea agreement immediately, he would have to serve 85 percent of a 24-year prison sentence. After entering the plea, he consulted with family members, and then asked the deputy public defender to make a motion to withdraw it. After she refused to do so, his family hired private counsel to make the motion.

Petitioner quotes part of the plea proceedings. He ends at a point when he answered, No, when he was asked if he wanted to enter into the agreement. He leaves out that, after he gave that response, he conferred with his counsel, and then said he did want to proceed with the plea bargain.

Petitioner contends that his deputy public defender deprived him of the effective assistance of counsel by refusing to prepare the motion to withdraw the plea. He has not met the test of Strickland v. Washington (1984) 466 U.S. 668 and People v. Pope (1979) 23 Cal.3d 412, as there was no merit to such a motion, and, in any event, it was later made by his private counsel.

Petitioner also argues that his counsel was ineffective for failing to challenge the difference between the information and his plea. He ignores the amendment to the information that occurred immediately prior to the plea.

Petitioner maintains that there was insufficient evidence to support a conviction for robbery. Again, he fails to realize that his use of force while escaping with the stolen car, as the victim clung to it, established the offense.

Finally, petitioner maintains that his private counsel rendered ineffective assistance by failing to prepare a certificate of probable cause. Since there was no basis for such a certificate, we reject that argument as well.

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J. EGERTON, J.^*

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^[1] Subsequent code references are to the Penal Code unless otherwise stated.

^[2] He does not argue on appeal, as he did below, that the facts do not meet any of the exceptions in section 1192.7. Such an argument could not have succeeded, since a defendant who accepts a plea bargain is estopped from challenging it on the ground that it violated section 1192.7. (People v. Webb (1986) 186 Cal.App.3d 401, 411-412.)

^* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.