IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 three in accordance with the plea bargain.
Defendant signed a felony plea form and waiver of constitutional rights before he entered his plea. In it he was informed of and waived his rights to a preliminary hearing, trial by jury, confrontation and cross-examination of witnesses against him, the right to subpoena witnesses for his defense, to testify on his own behalf, his privilege against self-incrimination, and his right to appeal. Defendant's attorney also stipulated there was a factual basis for the plea and joined in the waiver of jury trial.
The court found a factual basis for the plea based on the stipulation. It found defendant had waived his constitutional rights knowingly, intelligently, and voluntarily. It accepted the plea and found appellant guilty on count three, second degree robbery. Pursuant to the plea bargain, and on the People's motion, the court dismissed counts one, two, four and five. We see no irregularity that would merit briefing.
As part of his plea agreement, defendant waived his right to appeal. Such a waiver is valid provided that "the record shows that the waiver was free, knowing and intelligent . . . ." (People v. Charles (1985) 171 Cal.App.3d 552, 563-564.) However, "a defendant's general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea . . . ." (People v. Panizzon (1996) 13 Cal.4th 68, 85.)
Defendant's notice of appeal, however, specified that he challenged the validity of the plea. Defendant requested a certificate of probable cause, which was granted on June 9, 2010. Therefore, the validity of the plea is properly before us. We find no basis in the record for doubting that defendant's plea was freely, knowingly and intelligently entered.
With respect to his motion to withdraw his plea, the defense bears the burden of showing good cause for withdrawal of the plea by clear and convincing evidence. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Nance (1991) 1 Cal.App.4th 1453, 1456-1457.) Here the court reasoned that the statement by Barnett was made after he entered his guilty plea with a bargained-for three-year sentence, having been facing a life term for kidnapping for robbery. (§ 209, subd. (b)(1).) Since there was no indication that his bargain could be withdrawn by the prosecution if he gave defendant an exculpatory writing, the court reasoned that Barnett had "nothing to lose" in making the statement. The writing also was not made under penalty of perjury, and it did not give any details of the "true" facts; it merely offered the exculpatory statement that defendant "had nothing to do with the robbery." Indeed, defendant himself has not provided his version of the "true facts" to which he expected Barnett to testify.
Based on those factors, the court found no good cause to allow withdrawal of the plea. The court specifically relied on People v. Watts (1977) 67 Cal.App.3d 173, 183, a case sufficiently similar in that it involved a motion to withdraw a plea based on a co-defendant's subsequent testimony at a third co-defendant's trial, which failed to implicate Watts. Were we to review this issue, it would be under the deferential abuse of discretion standard (In re Brown (1973) 9 Cal.3d 679, 684), which would make a ruling in defendant's favor unlikely.
The five-year sentence was the aggravated term for the offense (§ 213, subd. (a)(2)), agreed to as part of the plea bargain. The court granted defendant 252 days of actual presentence custody credit, plus 37 days of conduct credit, calculated at 15 percent of the actual credit pursuant to section 2933.1. This corresponds with our calculation. A restitution fine of $1,000 was authorized by section 1202.4, subdivision (b). A parole revocation fine of equal amount was imposed but suspended in accordance with section 1202.45. We see no arguable sentencing error that would merit briefing.
Accordingly, the judgment is affirmed.