Fear Not Law Articles: P. v. Ross

P. v. Ross

Filed 7/11/12 P. v. Ross CA6

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH
APPELLATE DISTRICT

>

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD DAVID ROSS,

Defendant and
Appellant.

H037645

(Santa Clara
County

Super. Ct.
No. C1114323)

Pursuant to
a negotiated disposition, Richard Ross
(defendant) pleaded no contest to one count of assault by means of force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). In exchange for his no contest plea defendant
was promised probation on the condition that he serve one year in county jail
with no opportunity for early release.

On November 4, 2011, the court sentenced
defendant pursuant to the terms of the negotiated disposition.

Defendant
filed a notice of appeal on November 14, 2011, challenging the validity
of the plea. Defendant sought and was
granted a certificate of probable cause.

Defendant'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 href="http://www.mcmillanlaw.com/">People v. Wende (1979) 25 Cal.3d 436
and Anders v. California (1967) 386
U.S. 738.

Initially,
on March 7, 2012, we
notified defendant of his right to submit
written argument on his own behalf within 30 days. The letter we sent to
defendant was returned because he was no longer in custody. Accordingly, we sent another letter to
defendant at what we were informed by counsel was his home address. Again the letter was returned. As a result, we have not received any
response from defendant.

            Pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, >supra, 386 U.S. 738, we have reviewed the entire record and have concluded there are no arguable issues on appeal.  Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed."  (>Id. at p. 110.)  We have included information about aspects of the trial court proceedings that might become relevant in future proceedings.  (Id. at p. 112.)

Facts and Procedural History

Since
defendant entered his plea before the preliminary examination and waived
referral to the probation department we have no record of the facts underlying
his plea.

By way of a felony criminal complaint the
Santa Clara County District Attorney charged defendant with assault with a
deadly weapon or by means of force likely to produce great bodily injury in
violation of Penal Code section 245, subdivision (a)(1). The complaint contained an allegation that in
the commission of the offense, the defendant personally used a dangerous and
deadly weapon, to wit a rock, within the meaning of Penal Code sections 667 and
1192.7.

Before the preliminary
examination commenced, the prosecutor made an offer to reduce the charge to
assault by means of force likely to produce great bodily injury and strike the
personal use allegation. The court told
the defendant that if he entered a plea, the agreement was that he would be
sentenced to three years formal probation, one year in county jail and no early
release program.

Before taking defendant's
plea, the court advised him of the constitutional rights that he would be
giving up by entering his plea. Defendant stated that he understood and gave up those
rights. The court informed the defendant
of the consequences of his plea, including immigration consequences. Defendant said that he understood. The court informed defendant that a plea of
no contest was the same as a guilty plea and that the maximum possible state
prison sentence he was facing without the plea agreement was four years. Counsel stipulated to a factual basis for the
plea contained in the police reports. Thereafter,
the defendant entered his no contest plea.
The court found that defendant had been advised
of his constitutional rights and understood all those rights; and was "in
the proper state of mind to enter the plea here today. Find it was knowing, voluntary, intelligent,
freely entered plea."

When defendant appeared for
sentencing on November 4, 2011,
defense counsel told the court that the defendant was indicating that he had
been told that he would get a 120 day sentence.
The court pointed out that the plea bargain was for a county jail
sentence of one year and the court was not able to sentence defendant to
anything less. Defense counsel told the
court that the defendant was saying that he did not understand what no contest
meant. The court pointed out that it had
told the defendant that a no contest plea was the same as a guilty plea and had
all the same consequences. After a brief
discussion, the court went off the record to give defense counsel time to talk
to the defendant. Back on the record,
defense counsel indicated that the defendant was saying that he did not
understand the difference between no contest and nolo contendere and wished to
withdraw his plea. The court suggested
that it put the matter over to a later time.
Then, the court told counsel to approach and set the matter for later in
the day for a Marsden hearing.href="#_ftn1" name="_ftnref1" title="">[1]

Following a hearing, the court
denied defendant's Marsden motion
finding that defense counsel's representation was not deficient. Thereafter, the court sentenced defendant
pursuant to the terms of the plea bargain.
The court awarded him 144 days of custody credits consisting of 72
actual days and 72 days of conduct credits.
The court ordered general restitution to the victim and imposed a $200
restitution fund fine plus a 10 percent administrative fee. The court imposed, but suspended a probation
revocation fine in the same amount. The
court found that defendant did not have the ability to pay any other fines or
fees. Defendant stipulated to the amount
of the restitution award to the victim.

Our review of the record, including the transcript of
the Marsden hearing, satisfies this court that defendant's attorney has
fully complied with her responsibilities and that no arguable issues
exist. (People v. Wende,
supra, 25 Cal.3d at p. 441.) The
sentence imposed was consistent with the plea
bargain. The custody credits award
is supported by the law that was in effect at the time defendant was sentenced.

clear=all >

>

>Disposition

The judgment is affirmed.

____________________________

ELIA,
J.

WE CONCUR:

___________________________

RUSHING, P. J.

___________________________

PREMO, J.

id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] People
v. Marsden (1970) 2 Cal.3d
118.

Description	Pursuant to a negotiated disposition, Richard Ross (defendant) pleaded no contest to one count of assault by means of force likely to produce great bodily injury (Pen. Code, Â§ 245, subd. (a)(1)). In exchange for his no contest plea defendant was promised probation on the condition that he serve one year in county jail with no opportunity for early release. On November 4, 2011, the court sentenced defendant pursuant to the terms of the negotiated disposition. Defendant filed a notice of appeal on November 14, 2011, challenging the validity of the plea. Defendant sought and was granted a certificate of probable cause. Defendant'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 and Anders v. California (1967) 386 U.S. 738. Initially, on March 7, 2012, we notified defendant of his right to submit written argument on his own behalf within 30 days. The letter we sent to defendant was returned because he was no longer in custody. Accordingly, we sent another letter to defendant at what we were informed by counsel was his home address. Again the letter was returned. As a result, we have not received any response from defendant. Pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, we have reviewed the entire record and have concluded there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.)
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.