P. v. Fryhatt

Filed 9/29/06 P. v. Fryhatt CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith and Elva R. Soper,^* Judges. Affirmed.

Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 2001, Fryhaat^[1] pled guilty to manufacturing methamphetamine (Health & Saf. Code § 11379.6, subd. (a)), possessing a controlled substance (Health & Saf. Code § 11378), maintaining a place where controlled substances are sold (Health & Saf. Code § 11366) and admitted having suffered a prior conviction for which he served a prison term. (Pen. Code § 667.5, subd. (b).) As part of his plea bargain, defendant waived his right to appeal. In the change of plea form, his initials appear next to the following provision, which was amended by interlineation, “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the Unites States, or denial of naturalization will^[2] result from a conviction of the offense(s) to which I plead guilty . . . .” The record before us does not state what sentence, if any, defendant received for these crimes,^[3] although it appears from the statements in his motion, discussed below, that he was sentenced to prison. In 2005, defendant personally submitted an unsworn “Motion for Writ of Error (Coram Nobis) and Motion to Vacate Conviction“ in which he asked the trial court to vacate his convictions and “withdraw [his] guilty plea[s]” on the grounds that his trial attorney and the trial court that accepted his pleas had not advised him of the immigration consequences of them. He also alleged something that is not quite clear from his pleading,^[4] but he seems to allege that while released pending sentencing, he entered an agreement with the San Bernardino Police Department to act as an informant for the department, in exchange for which he would have “his plea reversed and . . . will get time served.” However, he subsequently was found in possession of methamphetamine, the prosecution of which, he alleges, was dismissed, and he was sentenced to prison, presumably for the crimes to which he pled.^[5] The motion is not file stamped.

We are informed by the Clerk of the Superior Court that no Reporter was present when the trial court denied defendant’s motion. However, the record before us contains a statement by the trial court of the basis for its denial, i.e., that the plea form “fully advised defendant of [the ] immigration consequences of [his] plea; that defendant and his attorney confirmed defendant understood [the] plea form; and defendant made no indication that he might need an interpreter.”^[6]

Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

The defendant filed a personal supplemental brief, which was read and considered.

We have now concluded our independent review of the record and find no arguable issues.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

McKINSTER

J.

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

^[1] Defendant is also known as Faour Abdallah Fraihat.

^[2] This word was substituted in the place of the word “may” on the form.

^[3] Contrary to the assertion of counsel for defendant on appeal, defendant’s change of plea form, which was executed on July 6, 2001, did not provide “that upon pleading guilty [defendant] would be released from custody to act as an under cover informant with sentencing delayed.” {AOB 3} The form states only that defendant was “pleading to the sheet” (meaning that he was pleading guilty to all the offenses with which he was charged), pronouncement of judgment was to take place on September 27, 2001 and defendant was to be released on his own recognizance. The less-than-clear allegations in defendant’s 2005 motion provide a basis upon which one could assert that while defendant was released on his own recognizance pending sentencing, he agreed to act as an informant for the San Bernardino Police Department. However, neither document reflects that sentencing was to be delayed for any notable period and, in fact, the change of plea form states that sentencing is to take place within a period common in criminal cases.

^[4] In it, he states that he “does not understand English very well[.]”

^[5] In his personal supplemental brief, defendant explains that he served his sentence for the crimes to which he pled guilty, was released and thereafter deported and that’s when he filed the motion.

^[6] This statement is duplicated in the court minutes, which show Judge Michael Smith as denying the motion. However, the written court order was also signed five days later by a retired judge sitting by assignment.