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The People v. Tony Low

December 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONY LOW, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F00949)

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

P. v. Low

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

The facts are taken from the factual basis stated at the time of defendant's plea.

About 10:00 p.m. on February 3, 2010, defendant Tony Low entered a bookstore. As four store employees prepared to close the store, defendant emerged from behind a bookshelf yielding "what appeared to be a real gun." Defendant put his arm around the neck of one employee, pressed the gun against her head, and demanded money, threatening all the employees. The employees opened the store's safe and gave defendant the money inside. Defendant fled the store with $2,800.

An amended information charged defendant with four counts of second degree robbery (Pen. Code, § 211; undesignated statutory section references that follow are to the Penal Code) and alleged that he had sustained four prior felony convictions (four within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12 [1987 robbery, 1988 robbery, 1988 assault with a deadly weapon, 1992 first degree burglary] and three within the meaning of section 667, subdivision (a)). The amended information further alleged that defendant sustained a prior prison term (§ 667.5, subd. (b)) [2005 bringing drugs into jail].

Defendant entered a negotiated plea of no contest to one count of second degree robbery and admitted one strike prior [1987 robbery] and three prior serious felony convictions [1987 robbery, 1988 robbery, and 1992 first degree burglary] in exchange for a stipulated state prison sentence of 25 years, that is, the upper term of five years for the offense, doubled for the strike prior, and five years each for the three prior serious felony convictions, and a stipulated $200 restitution fine. The remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) for purposes of restitution. The court sentenced defendant accordingly.

Defendant appeals. The trial court denied defendant's request for a certificate of probable cause (§ 1237.5).

We note that, at the entry of the plea hearing, defense counsel stated that defendant would "waive his appellate rights." When the trial court explained the consequences of his plea, the trial court stated that defendant would not have a right to appeal "any of the issues that have been litigated in this case as a result of your plea." The trial court then obtained defendant's waiver of his constitutional rights but not his right to appeal. Defendant never personally and on the record waived his right to appeal. In his request for a certificate of probable cause, defendant complained that he had not been advised concerning his right to appeal generally or his right to appeal search and seizure issues. He claimed he was not properly admonished concerning his right to appeal and thus his waiver was ineffective. The trial court denied defendant's request for a certificate of probable cause, noting defendant's waiver of his appellate rights. Although defendant was advised that his plea meant he would not be able to appeal any issues which had been litigated, those issues were not delineated and defendant did not forfeit his right to appeal any particular issue on the record. (See People v. Rosso (1994) 30 Cal.App.4th 1001, 1005-1007.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (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, challenging the sufficiency of the evidence, raising ineffective assistance of counsel, and claiming the trial court erred in denying his request for a ...


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