P. v. Hands
Filed 5/15/13 P. v. Hands CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RUBEN LAMAR
HANDS,
Defendant and Appellant.
A137650
(San
Francisco City
& County
Super. Ct. Nos. 218569)
Appellant
Ruben Lamar Hands (appellant) appeals from his conviction and resulting
sentence to one count of
degree robbery (Pen. Code,
name="_ftnref1" title="">[1]
§ 211). Appellant’s counsel has
filed an opening brief in which no issues are raised, and asks this court for
an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel’s declaration states that he notified
appellant that no issues were being raised by counsel on appeal, and that an
independent review under Wende instead
was being requested. Appellant was also
advised of his right personally to file a supplemental
brief raising any issues he chooses to bring to this court’s
attention. No supplemental brief has
been filed by appellant personally.
To
assist this court in its review, pursuant to Anders v. California (1967) 386 U.S. 738, counsel points out as a
possible issue whether the trial court erred in denying appellant’s
Procedural and Factual Background of Case
A
one-count felony complaint was filed by the
Francisco County District Attorney’s Office on November 22, 2011, charging appellant with second degree
robbery (§ 211). Sentencing
enhancements were also alleged, including that appellant’s prior criminal
record made him ineligible for probation, that his prior criminal convictions
included one strike within the meaning of this state’s Three Strikes law, one
prior “serious†felony, within the meaning of section 667, subdivision (a)(1),
and that he had served three separate, prior
of section 667.5, subdivision (b). On
that same date, appellant requested to waive the right to have counsel
appointed to represent him, and instead to represent himself. The request was granted by the trial court
after finding, through observations and questioning, that appellant
voluntarily, intelligently, and knowingly waived his right to counsel, with a
full understanding of the dangers and disadvantages of
The
incident leading to the filing of the criminal
complaint occurred on August 26,
2010, in San Francisco’s
Tenderloin neighborhood. At that time,
appellant was caught by an undercover police officer conducting a “buy/bustâ€
operation. Appellant took the officer’s
money for the drugs he was told appellant was selling to him, only to find that
there were no such drugs in the package handed to the officer. When the officer asked for his money back,
appellant refused and threatened to physically beat the officer. Appellant then approached the officer with
clenched fists, and the officer activated his distress/arrest signal. Other officers then arrived on scene and
appellant was arrested.
At
the next hearing on November 29, 2011,
the trial court appointed advisory counsel to assist appellant. Arraignment was then held, at which time
appellant pleaded not guilty to the charge in count one and denied all of the
special allegations.
On
March 15, 2012, appellant, with the assistance of counsel,
filed a motion to discover certain personnel records pertaining to the three
police officers involved in his arrest.
A stipulation regarding this motion was then filed and signed both by
appellant and legal counsel for the San Francisco Police Department on April 9, 2012. The court approved the stipulation and
ordered the documents encompassed by the stipulation to be produced by the San
Francisco Police Department.
When
the matter came on for a preliminary
hearing, appellant and the prosecution entered into a plea
disposition. Its terms included that
appellant would withdraw his not guilty plea and instead plead guilty to second
degree robbery. As part of the plea,
appellant was advised that he was not eligible for probation, that he would be
sentenced to a three-year midterm, which would be doubled for a total of six
years in state prison. The state prison
sentence would be served concurrent to another sentence appellant had received
in a criminal case pending in Alameda
County. Other fines and penalties would be imposed.
Advisory
counsel was present when the plea was placed on the record. Counsel indicated that counsel had explained
to appellant all of the constitutional rights he was giving up by agreeing to
the plea. These included the right to a
preliminary hearing at which time appellant could cross-examine witnesses. Appellant was also advised by counsel that by
pleading guilty he was waiving his right against self-incrimination, his right
to a trial by jury, including the right to confront all witnesses against him
in court. Counsel had also advised
appellant that under the terms of the negotiated disposition, he would not be
eligible for a grant of probation, and that he would receive a state prison
sentence totaling six years. Because the
crime to which he was pleading guilty was a strike under California’s
Three Strikes law, the plea could be used against him in any future criminal
cases, including subjecting him to a potential term of 25 years to life in
prison in the event he was subsequently convicted of a felony. Counsel also advised appellant that he would
be ineligible to serve any future state prison sentence in county jail,
pursuant to section 1170, subdivision (h).
After
advisory counsel finished informing the court of the terms of the plea, and the
admonitions counsel had given to appellant concerning the consequences of the
plea, the trial court itself reiterated these consequences and the rights
appellant was waiving by entering his plea.
In addition to the above, appellant also acknowledged that appellant
waived his right to be sentenced by the same judge who took his plea,
and that his plea was not coerced or entered into under any pressure to plead
guilty, and was freely and voluntarily entered.
Thereafter,
before sentencing took place, appellant filed a motion to withdraw his guilty
plea. The motion was made on the grounds
that the plea was entered by him under duress and without his understanding the
consequences of the plea, resulting from mistake, ignorance or
inadvertence. The prosecution filed
opposition to the motion to withdraw the guilty plea. Apparently,
the motion was based on appellant’s claim that he agreed to plead guilty in
order to get out of county jail custody where he had been threatened by some
other inmates. Thus, he claimed that he
would not have entered the plea “but for the reasonable fear for his own
safety.†This reason likewise was
addressed by advisory counsel at the hearing held on the motion on January 9,
2013. Counsel attempted to clarify that
the basis for the motion was more of a “duress type of argument,†and not that
appellant did not understand the consequences of his plea. The prosecutor responded that appellant had
made an insufficient showing as to how these alleged threats from other inmates
related in any way to his plea of guilty to a state prison term, not to a local
custody term. The district attorney
noted also that appellant had been sentenced to serve a state prison term of
seven years in an Alameda County criminal case involving an unrelated robbery,
and the parties had worked closely with counsel in this case to ensure
appellant could remain in local custody until the San Francisco case was
concluded. This allowed appellant the
opportunity to have several visits with his ailing grandmother.
After
hearing from counsel, the trial court denied the motion, finding that appellant
had failed in his burden to show by clear and convincing evidence that there
was good cause to withdraw his plea.
Appellant was then sentenced in accordance with the negotiated
plea. This included imposing an
aggregate six-year state prison sentence to run concurrent to the sentence in
the Alameda County case, less total local custody credits of 484 days.
Thereafter,
appellant filed a request for a certificate of probable cause as to his motion
to withdraw his plea, which was granted.
This appeal followed.
Conclusions Based Upon Independent Record
Review
Upon
our independent review of the record we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal.
We
conclude that appellant’s guilty plea was knowingly and voluntarily entered
after a full admonishment of the rights he was waiving by pleading guilty and
after being advised of the full consequences of that plea. We also conclude that we perceive no error in
the trial court’s denial of appellant’s motion to withdraw his plea. Appellant was sentenced in accordance with
the negotiated guilty plea, and the terms of the sentence, including all fines
and penalties, were consistent with applicable law.
DISPOSITION
The
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
Penal Code, unless otherwise indicated.
v. Arbuckle (1978) 22 Cal.3d 749.
