IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
May 5, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EXZADRIAN VAN WILLIAMS, DEFENDANT AND APPELLANT.
Super. Ct. No. 62-089978
The opinion of the court was delivered by: Butz, J.
P. v. Williams
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Exzadrian Van Williams appeals the denial of his motion to recall his sentence and the denial of his motion to be released on bail pending appeal.
His appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, 110, 124. In accordance with the latter, we provide a brief summary of the facts and procedural history of the case.
Some of our factual discussion and analysis in this appeal is derived from our opinion in case No. C064705, of which we take judicial notice. (People v. Williams (Mar. 16, 2011, C064705) [nonpub. opn.]; Evid. Code, § 451, subd. (a).)
In May 2009, defendant possessed 0.24 grams of cocaine. He pleaded no contest to possession of narcotics (Health & Saf. Code, § 11350, subd. (a)) and admitted a prior strike conviction (first degree burglary). He was sentenced to 32 months in state prison in accordance with the plea agreement (the low term of 16 months, doubled for the prior strike). Defendant appealed his sentence, contending the trial court abused its discretion in denying his Romero*fn1 motion. We affirmed the judgment. (People v. Williams, supra, C064705.)
Within 120 days of judgment, and while his appeal was pending, defendant filed a motion to reconsider his Romero motion. He claimed the trial court had abused its discretion "by overlooking all of defendant's social [and] family ties, religious [and] church affiliations, [and] educational accomplishments. These accomplishments clearly placed him outside the spirit of [three] strikes." Defendant also made a Faretta*fn2 motion, which the court granted. The court deemed the motion to reconsider a request to recall the sentence under Penal Code section 1170. After considering defendant's request, the court denied it. Defendant also sought bail pending appeal. The court denied the motion, finding there was no basis for it.
Defendant pointed out to the trial court some errors in the abstract of judgment and requested they be corrected. Specifically, the abstract indicated he had two prior strike convictions rather than one, and he was mistakenly sent to the California Rehabilitation Center, rather than California's Department of Corrections and Rehabilitation, which entitled him to additional custody credits. The court agreed and corrected those errors.
Defendant filed notices of appeal as to the denial of his motion to recall sentence and the denial of his motion to be released on bail pending appeal.
Appointed counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief arguing ineffective assistance of counsel and prosecutorial misconduct based on his assertion that he was entitled to deferred entry of judgment and Proposition 36 probation, which he claimed would have mooted the Romero issue. He also contends his plea was not voluntary, knowing, and intelligent based on the same ineffective assistance of counsel and prosecutorial misconduct related to the failure to grant him deferred entry of judgment. He contends because of his eligibility for deferred entry of judgment, it also would have been appropriate to grant him bail pending appeal. Defendant also argues the denial of his Romero motion was in error because of his entitlement to deferred entry of judgment.
Defendant's claims regarding the denial of his motion for bail pending appeal is mooted by the issuance of our decision on appeal. (See People v. Lowery (1983) 145 Cal.App.3d 902, 904.) Defendant's remaining contentions are all premised on his claim that he was eligible for deferred entry of judgment. He was not. Defendant was on parole from a prior strike conviction at the time he committed this offense. (Pen. Code, § 1000, subd. (a)(4).) That fact disqualifies him for deferred entry of judgment.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: RAYE, P. J. MAURO, J.