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The People v. Darien A. Nelson

December 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DARIEN A. NELSON, DEFENDANT AND APPELLANT.



Solano County Super. Ct. No. VCR205001

The opinion of the court was delivered by: Richman, J.

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us with a request that we review the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was informed of his right to file a supplemental brief, but he elected not to do so. We have reviewed the record and find no issue that merits briefing, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 21, 2009, defendant was convicted of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))*fn1 by plea of no contest in connection with a negotiated disposition that included a five-year prison term and dismissal of additional charges.*fn2 He entered a Harvey waiver with respect to two other counts of the complaint.*fn3

The underlying crime involved the robbery of a Check Into Cash store in Benicia on October 1, 2009. The two female victims and a would-be patron of the store identified defendant as one of the robbers who pointed a black handgun at the head of one of the victims while demanding money from the cash register. The victims also identified co-defendant Courtney Johnson as the other robber. Co-defendant Tommie Barnett was identified as the driver of the getaway car, who had entered the establishment earlier, evidently casing it for the others. The three robbers communicated with each other via walkie-talkie.

After the robbery, defendant, Barnett and Johnson were stopped by the police in a car that matched the description given by witnesses. In the car they found a semiautomatic BB gun, an air gun, a Cobra walkie-talkie, $1,216 in cash, 14 checks stolen from Check Into Cash, and other items associated with the robbery, including a bandana worn by one of the robbers.

Also on December 21, 2009, co-defendant Johnson pled no contest to count two (second-degree robbery) in exchange for a five-year prison sentence. Co-defendant Barnett pled no contest to count one (conspiracy to commit robbery) on the same date, in exchange for an indicated sentence of three years in state prison.

On January 20, 2010, defendant asked to withdraw his plea. On February 3, counsel was specially appointed to represent defendant for purposes of investigating a motion to withdraw the plea.

On April 13, 2010, counsel filed a formal motion to withdraw the plea on the ground that co-defendant Barnett provided a written recantation after defendant had entered his plea. In the document Barnett claimed that his prior statement to the police implicating defendant was false and that defendant, in fact, had nothing to do with the robbery. Defendant claimed his plea was based "upon his mistaken belief" that Barnett would "continue to lie and support the false allegations that he made to the police during his initial interview." Defendant claimed he would not have pled no contest had he known Barnett would recant his statements to police. The court denied the motion to withdraw his plea on June 7, 2010.

On June 9, 2010, defendant moved to replace defense counsel. After an in camera hearing, the court denied defendant's motion under People v. Marsden (1970) 2 Cal.3d 118.

Immediately after denying the Marsden motion, the court denied probation and sentenced defendant to the upper term of five years in prison on count ...


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