P. v. Simms



























Filed 10/5/10 P. v. Simms CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. TONY ARMOND SIMMS, Defendant and Appellant.

E050981 (Super.Ct.No. SWF013195) >OPINION

APPEAL
from the Superior Court
of Riverside
County. Rodney L.
Walker, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.

Christian
C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

No
appearance for Plaintiff and Respondent.

On January 9, 2007, defendant and appellant Tony Armond Simms
pleaded guilty to two counts of robbery
(Pen. Code, § 211)^[1] and admitted that in both counts a principal
was armed with a handgun (§ 12022, subd. (a)(1)). He also admitted that he had suffered one
prior serious felony conviction (§ 667, subd. (a)) and three prior strike
convictions (§§ 667, subds. (c)-(e)(2)(A), 1170.12, subd. (c)(2)(A)). After the trial court denied defendant's
motion to dismiss his prior strike convictions pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, he was sentenced to a total term of 27 years to
life.

This
is defendant's third appeal. In his
first appeal, case No. E043488, this court remanded the matter for
resentencing, as the record was clear that the trial court had misunderstood
its discretion to dismiss his prior strike convictions. (People
v. Simms (April 1, 2008,
E043488 [nonpub. opn.] (Simms I).) On remand, defendant was resentenced to an
indeterminate term of 32 years to life.

In
his second appeal, case No E046039, this court again remanded the matter for
resentencing. (People v. Simms (September
3, 2009, E046039 [nonpub. opn.] (Simms II).) On remand,
defendant filed another Romero
motion. Following a new >Romero and sentencing hearing, the trial
court denied defendant's motion to dismiss
his prior strike convictions a third time and sentenced defendant to an
indeterminate term of 31 years to life.

In
this appeal, defendant is challenging the underlying plea. We affirm the judgment.

I^[2]

FACTUAL AND
PROCEDURAL BACKGROUND

On
August 15, 2005,
codefendants Delbert Smith and Michael Bailey robbed a California Coast Credit
Union branch in Temecula of approximately $5,500 and fled in a Honda. Defendant served as the driver of the
get-away car.


Defendant was charged with
two counts of robbery. It was also
alleged that defendant participated in the robberies knowing that another
principal was armed with a firearm. The
information further alleged that defendant had previously been convicted of a
prior serious felony, to wit, an April 1993 robbery, and that defendant had
sustained three prior strike convictions, to wit, the April 1993 robbery and two December 1998 robberies.


On January 9, 2007, in a plea to the court, defendant
pled to the sheet and admitted the prior enhancement allegations. The court reviewed the plea form with
defendant and explained his maximum exposure and the consequences of pleading
guilty. The court also asked defendant
whether he had placed his initials on the plea form, signed the plea form, and
understood the plea. Defendant replied
in the affirmative. The court also asked
defendant whether he required additional time with his attorney before he pled
guilty or whether he had any questions.
Defendant replied in the negative.
The court also asked defendant whether he understood his constitutional
rights and whether he was willing to give up those rights so that he could
plead guilty and admit all the enhancement allegations. Defendant replied in the affirmative. The court found that defendant intelligently
and voluntarily waived his constitutional rights and that his plea and
admissions were free and voluntary.


Defendant subsequently filed
a motion to dismiss his prior strike convictions, and the People filed their
opposition. The hearing on the >Romero motion was held on May 18, 2007. Essentially misunderstanding its discretion,
the trial court denied defendant's motion to dismiss his prior strike
convictions. Defendant was thereafter
sentenced to a total indeterminate term of 27 years to life.

Following
several appeals and resentencing hearings,
as noted above, defendant was eventually sentenced to an indeterminate term of
31 years to life.

On
May 18, 2010, defendant
filed a notice of appeal based on the sentence or other matters occurring after
the plea. He also challenged the
validity of the plea and admissions. His
request for certificate of probable cause was granted on May 24, 2010.

II

DISCUSSION

Defendant
appealed and, upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California
(1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement
of the case, a summary of the facts, and potential arguable issues and requesting
this court to conduct an independent review of the record.


We offered defendant an
opportunity to file a personal supplemental brief, which he has done. In his supplemental brief, defendant seeks to
withdraw his guilty plea based on improper inducement from his trial
counsel. This issue is not properly
before this court on defendant's appeal from his resentencing. Defendant never raised the validity of his
plea in the trial court or in his first two appeals. His failure to do so bars him from raising it
now. (People v. Senior (1995) 33 Cal.App.4th 531, 535-538.) Just as in that case, we deem defendant's
belated claim of error waived â€