P. v.
Filed 1/15/13 P.
v. Whitehorse CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION FIVE
A135253
(
Super.
Joshua James Whitehorse appeals from
a judgment of conviction and sentence imposed after he entered a plea of no
contest to multiple offenses. His
attorney has filed a brief seeking our independent review of the record,
pursuant to
(see Anders v. California (1967) 386
U.S. 738), in order to determine whether there is any arguable issue on
appeal. We find no arguable issue and
affirm.
I. FACTS AND PROCEDURAL
HISTORY
An amended complaint charged Whitehorse with
felony robbery in the second degree (Pen. Code, § 211), felony
subd. (c)), felony commercial burglary (§ 459), and misdemeanor fraudulent
use of an access card (§ 484g, subd. (a)).
personally used a deadly weapon (§ 12022, subd. (b)(1)) and committed a
serious or violent felony while on parole (§ 1203.085, subd. (b)). It was further alleged that he had a prison
prior for purposes of section 667.5, subdivision (b).
The probation department’s
presentence report described the underlying events as follows. Around 9 p.m. on August 18, 2011, victim Nancy told police that someone ripped her phone out of her
hand, got into a car, and drove off.
Witness Alan saw two large males sitting in the front seats of a purple
PT Cruiser, and watched one of them run down Fourth Street,
return to the car, and speed off. Around
the same time, victim Cody was walking on Fourth Street with witness Kelli,
when a burgundy PT Cruiser pulled up; the driver got out, pointed what looked
like a semi-automatic pistol at Cody and yelled for him to hand over his
wallet, while the passenger got out of the car and ran around to the driver’s
door. Afraid he would be shot if he did
not comply, Cody threw his wallet (containing his credit card) on the ground,
and the assailant picked it up and took off in the PT Cruiser. About ten minutes later, witness Michael
reported to police that a recklessly-driven purple PT Cruiser almost hit him
near Highway 101 and Todd Road; Michael followed the vehicle to a gas station,
and when the driver and passenger saw him watching them, they hid their faces
and sped away, running several red lights.
Michael described the men to police, who also obtained a copy of the
surveillance video of the robbery suspects.
The gas station clerk remembered seeing the purple PT Cruiser and a man
(Whitehorse) in the store while the other man used Cody’s credit card for
purchases. The next day, the police
stopped the purple PT Cruiser and detained all of its occupants, including Whitehorse. Cody, Kelli and Alan were brought to the
location of the stop; Cody identified Whitehorse as one of the people who
robbed him and the PT Cruiser as having been used in the crime; Kelli
identified Whitehorse as the person who robbed Cody and believed he was the one
who pointed the gun at Cody’s face and demanded his wallet. Another occupant of the vehicle told police
that Whitehorse and his codefendant took turns that evening jumping out of the
car with a model handgun and robbing people.
Whitehorse acknowledged that he was in the car that evening, but he
claimed it was his codefendant who took Nancy’s cell phone and Cody’s
wallet. During an in-person lineup at
the police station, Michael identified Whitehorse and the PT Cruiser.
On November 30, 2011, Whitehorse
entered a plea of no contest to the charge of second-degree robbery (of victim
Cody) and to the charge of felony grand theft from the person (of victim Nancy)
and admitted the allegations that he was on parole at the time of the robbery
and had a prison prior; the remaining two counts and other enhancements were to
be dismissed. In Whitehorse’s written
plea form and waiver of his constitutional rights, signed by Whitehorse and his
defense attorney, Whitehorse represented that he understood and waived his
right to trial and other specified rights, that the maximum punishment he could
receive was six years eight months, but that by plea agreement probation would
be denied and the custody term would be four years eight months. In court, while represented by his attorney,
Whitehorse waived his right to a preliminary hearing, the court reviewed with
Whitehorse his waiver and plea form, Whitehorse confirmed his understanding and
waiver of his rights, the court found his waiver to be voluntary, knowing, and
intelligent, Whitehorse entered his pleas and admitted the prior prison
enhancement, and defense counsel stipulated to a factual basis for the
plea. The matter was continued for
sentencing.
On March 21, 2012, Whitehorse filed
a motion to withdraw his plea, on the
ground that he was unaware that his plea would lead his codefendant to threaten
him and claim that Whitehorse was an informant, causing Whitehorse to spend his
prison term in protective custody. (See
§ 1018.) Whitehorse also noted that
his codefendant had been granted probation, while Whitehorse had pled to a deal
that sent him to prison. The People
opposed the motion, asserting that a plea may be withdrawn in the court’s
discretion only upon a showing of good
cause by clear and convincing evidence,
and that it was foreseeable to Whitehorse when he entered his plea that his
codefendant would make it known that Whitehorse gave a confession implicating
the codefendant. The People also argued
that Whitehorse was merely disappointed that he received a less favorable
disposition than his codefendant. The
court denied Whitehorse’s motion.
On April 19, 2012, the court
sentenced Whitehorse, based on the negotiated disposition, to an aggregate term
of four years eight months, comprised of the following: the mid-term of three years on the
second-degree robbery count (§ 213, subd. (a)(2)); plus a consecutive
eight months (one-third of the two-year midterm) on the felony grand theft
count (§ 489, subd. (b); § 1170, subd. (h)(1)); plus a consecutive
one year for the prison prior enhancement (§ 667.5, subd. (b)). The remaining counts were dismissed. The court also imposed a restitution fine of
$240 pursuant to section 1202.4 and a restitution fine of $240 pursuant to
section 1202.45, suspended unless parole is revoked. No objection was made to the sentence or to
the court’s subsequent calculation of credits.
On April 23, 2010, Whitehorse filed
a notice of appeal pursuant to
California Rules of Court, rule 8.304, subdivision (b)(4)(B), basing the appeal
on the sentence or other matters occurring after the plea that do not affect
the validity of the plea.
On June 18, 2012, Whitehorse’s
appellate counsel filed an amended notice of appeal and application for a
certificate of probable cause, aimed at expanding the grounds for appeal to
include a challenge to the validity of the appeal (more specifically, the
denial of his motion to withdraw his plea).
The trial court granted the request for a certificate of probable cause.
II.
DISCUSSION
Whitehorse’s appellate counsel
represents in the opening brief in this appeal that he wrote to Whitehorse and
advised him of the filing of a Wende
brief and his opportunity to personally file his own supplemental brief within
30 days of the date of the filing of the Wende
brief.
More than 30 days have passed since
the filing of the Wende brief, and we
have not received a supplemental brief
from Whitehorse.
We find no arguable issues on
appeal.
There are no legal issues that
require further briefing.
III.
DISPOSITION
The judgment is affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
references are to the Penal Code.
