COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 8, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
WILLIAM CECIL THORNTON, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Benke, Acting P. J.
P. v. Thornton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On the evening of October 8, 2009, Brent Dubose parked his Ford truck in the parking lot of his girlfriend's apartment complex. The next morning, Dubose went to the parking lot and saw the maintenance man, Jorge Pinngarron, looking at his Ford. Dubose saw that the large toolbox in the truck bed was open and Thornton was reaching into the toolbox and removing things. Dubose ran toward Thornton.
Thornton's Toyota truck was parked right behind Duboses's truck. Thornton ran to the Toyota and got ready to drive away. Dubose opened the Toyota's driver's side door to try to stop Thornton. Dubose said, "What's wrong with you?" Thornton said, "Bro, I'm high." Thornton looked scared.
Thornton started driving as Dubose hung onto the side of the Toyota. Dubose put Thornton in a headlock. Thornton struggled to get out of the headlock. With Dubose still hanging onto the Toyota, Thornton drove down the street for about 20 to 30 feet until he ran into Pinngarron's truck and came to a stop.
When the Toyota stopped, Thornton tried to get out and run away, but Dubose still had him in a headlock. Dubose's girlfriend had come outside and Dubose told her to call 911. The apartment manager arrived and said he knew Thornton. Dubose therefore released Thornton.
Thornton ran. Pinngarron found him in the Toyota. Pinngarron told him he could not leave. Pinngarron pulled the keys from the ignition and Thornton got out of the Toyota, carrying a bag, and ran. Someone grabbed Thornton and threw him to the ground. Sheriff's deputies arrived.
In the truck bed of Thornton's Toyota, Dubose found his tools and his compact disc case containing about 50 compact discs. The discs had been inside the cab of Dubose's truck.
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), she listed, as a possible but not arguable issue, whether trial counsel was ineffective because she allowed Thornton to plead guilty to both the greater and lesser included offenses, and whether this issue can be raised without a certificate of probable cause.
We granted Thornton permission to file a brief on his own behalf. He filed two supplemental briefs with the following contentions: (1) the trial court was biased and unfair during the plea proceedings and sentencing hearing and in other matters; (2) Federal Rules of Criminal Procedure prohibited the court from participating in plea discussions; (3) the court improperly denied Thornton's section 995 motion to dismiss the section 211 count in the information, his request for in propria persona status and his request for a certificate of probable cause; (4) the court improperly refused to modify fines in other cases and improperly declared Thornton's petition for writ of habeas corpus moot; and (5) trial counsel was ineffective.
While this appeal was pending, Thornton's appellate counsel filed a petition for writ of habeas corpus in the superior court. In the petition, Thornton contended trial counsel was ineffective because she allowed him to plead guilty to a greater and lesser included offense arising out of the same course of conduct. Because this precise issue was cited as an Anders issue in the Wende brief, we stayed the appeal until such time as the superior court ruled on the petition. Thornton's counsel has notified this court that the superior court granted the habeas petition, ordered the conviction of petty theft with a prior and the stayed two-year prison sentence for that conviction be stricken, and ordered the charge of petty theft with a prior be dismissed (§ 1385) based on Thornton's guilty plea to the greater offense of robbery. In light of the superior court's ruling on the habeas petition, the Anders issue is moot.
The remaining issues in Thornton's supplemental briefs are without merit. Our review of the entire record discloses no bias or unfairness on the part of the trial court during any of the proceedings in the instant case, the only matter before us in this appeal. To the extent Thornton raises issues arising in other cases, we cannot consider such events or rulings. As to other claims of error, there was no request for in propria persona status filed in this case; the record discloses no petition for writ of habeas corpus, aside from the one discussed above, and the Federal Rules of Criminal Procedure do not apply here.
Thornton's assertions regarding the section 995 motion are also without merit. At the preliminary hearing, defense counsel argued that as to the robbery count, there was no evidence Thornton used force or fear to take Dubose's property. The magistrate noted Thornton drove away in the Toyota and crashed while Dubose was hanging onto the side of the Toyota and trying to prevent Thornton from leaving with Dubose's property. Thus, Thornton used force to carry away the property and the magistrate's conclusion was correct. (People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) In a preplea section 995 motion to dismiss the robbery count, defense counsel argued there was no legally sufficient evidence at the preliminary hearing of the force or fear required for robbery. The court properly denied the section 995 motion. (People v. Estes, supra, at pp. 27-28.)
In the request for a certificate of probable cause, Thornton asserted he was pressured to plead guilty; his counsel failed to ask the court to recuse itself; Thornton was not advised he could appeal the denial of the section 995 motion; counsel did not do things Thornton asked her to do; and there are possible errors regarding the sentence on the prior convictions. The record does not disclose any ineffectiveness of trial counsel or any abuse of discretion in denying the certificate request that have not been rendered moot by the superior court's ruling on the habeas petition. The record shows Thornton's guilty plea was voluntary and intelligent. The record does not disclose any reason for the court to recuse itself or any error regarding sentence on prior convictions. As noted above, the court properly denied the section 995 motion.
A review of the record pursuant to Wende and Anders has disclosed no reasonably arguable appellate issues. Thornton has been competently represented by counsel on this appeal.
This court's order of October 20, 2010, staying the appeal, is vacated. The judgment is affirmed.