IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
October 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HARRY CHARLES ALLER, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. CM033046)
The opinion of the court was delivered by: Duarte , J.
P. v. Aller
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Harry Charles Aller, Jr., has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.
In May 2010, defendant backed his car up to the outside battery cage at a Wal-Mart store and stole 35 used car batteries from a fenced-in area valued at over $340. He was charged with petty theft with a prior. (Pen. Code, § 666.) The complaint specified that defendant had two prior burglary convictions and a petty theft with a prior conviction.
The People extended a plea offer requiring defendant to admit the charged theft and three prior convictions in exchange for a probationary sentence. The offer was set to expire upon the start of the preliminary hearing. Ultimately, defendant accepted the offer, pled guilty to the petty theft, and admitted the prior theft convictions.
Defendant was sentenced in accordance with the plea and was granted three years of probation, with a condition of serving 120 days in jail. He was ordered to pay $2,207 in various fines and fees and probation supervision fees of $164 per month. Jurisdiction was reserved on direct victim restitution.
Defendant filed a request for certificate of probable cause, challenging the validity of his plea and claiming certain comments by defense counsel pressured him to accept the plea. The trial court denied the certificate. Defendant then sought a second certificate of probable cause, and attached an amended notice of appeal raising post-plea issues. The second certificate was granted.*fn1
Appointed counsel filed an opening brief setting forth the facts of the case and requesting that we review the record and determine whether there be 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, claiming the trial court prejudicially erred in advising him there would be "no bargaining at a prehearing conference no matter what the evidence is" and that his attorney coerced his plea as well. Defendant has also moved to augment the record "to include the reporter's transcript on September 9, 2010."*fn2
Motion to Augment
The felony complaint was filed on July 29, 2010. Defendant was arraigned on September 27, 2010. There is no record of any hearing occurring prior to the arraignment, nor does the clerk's transcript indicate any hearings were held in this case on September 9, 2010. Defendant's motion to augment the record is denied.
The Court's Comments
Defendant claims the court advised him on October 12, 2010, that there would be "no bargaining at a prehearing conference," irrespective of any evidence. He does not cite a particular location in the record for the quote. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We have reviewed the transcript of the hearing in its entirety and are unable to locate the referenced quote.
Nor does defendant support the claim that any such comments by the court were unduly coercive with argument or citation to legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) "Where a point is raised in an appellate brief without argument or legal support, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citation.]" (People v. Murray (2008) 167 Cal.App.4th 1133, 1143.) Defendant's failure to provide citations to the record, legal argument, or authority forfeits this issue on appeal. (People v. Hovarter (2008) 44 Cal.4th 983, 1029; People v. Meyer (1963) 216 Cal.App.2d 618, 635.)
Further, in our review of the record we see no error in the statements the court did make. Prior to commencing the preliminary hearing, the court summarized the status of the case. Providing that information to defendant was not coercive; it was appropriate. The record shows the court remained patient with defendant despite his inattention, and even gave him a separate, extended opportunity to accept the plea offer, which defendant finally did.
Defendant also claims in his supplemental brief that he was deprived of due process and prejudiced by his attorney's alleged advisement to him that if he did not plead guilty he "would go to prison and Big Bubba would make [defendant] his bitch." This claim is not reviewable on appeal as it is based on matters outside the record--statements counsel purportedly made to defendant in advising him regarding his plea. (See People v. Barnett (1998) 17 Cal.4th 1044, 1183.) We see no evidence within the record that any such statement was made.
No evidence in the record supports defendant's assertions that either the trial court or his counsel made any type of coercive or prejudicial statement toward him, or that the plea process was in any way coercive or deprived him of due process.
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: BLEASE , Acting P. J. NICHOLSON , J.