P. v. Franklin
Filed 8/25/08 P. v. Franklin CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. PERRY T. FRANKLIN, Defendant and Appellant. | D052281 (Super. Ct. No. SCD 207648) |
APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.
Perry T. Franklin pleaded guilty to possessing cocaine base for sale (Health & Saf. Code, 11351.5) and admitted he had been previously convicted of a narcotics offense (Health & Saf. Code, 11370.2), had served a prior prison term (Pen. Code, 667.5, subd. (b)) and had a prior strike conviction (Pen. Code, 667, subds. (b)-(i)). The court struck the prior prison term and prior narcotics conviction and sentenced him to an
eight-year prison term, which consisted of the middle term doubled due to his prior strike conviction. We affirm the judgment.
FACTS
The police conducted a parole search of Franklin on July 5, 2007. On his person, the police found 11.53 grams of cocaine base, three $100 bills and a $50 bill. He also had two cell phones. The amount of cocaine was not consistent with personal use.
On the day set for trial, after the court conferred with counsel, the court stated the prosecution previously had offered Franklin a plea bargain that included a stipulated eight-year prison term and that the court believed an eight-year term sounded reasonable. The court noted that its practice was to consider a guilty plea prior to trial as a mitigating factor, and that if Franklin proceeded to trial, it was likely he would receive a total prison term of 15 years. Defense counsel noted he repeatedly had told Franklin that it was likely the probation department would recommend the maximum term and that, in his experience, when a client did not have a meritorious defense he would receive a shorter term by pleading guilty rather than going to trial. The prosecutor indicated that if Franklin did not plead guilty, it was likely that he would file an amended information alleging an additional strike conviction.
Franklin asked for a continuance because his family members were trying to retain an attorney. The court recessed so that defense counsel could contact this attorney. Following the recess, defense counsel indicated that the attorney had not yet been retained. Franklin asked for a continuance of one day. The court denied the continuance, but shortly thereafter recessed the proceedings until the following day.
The following day, Franklin pleaded guilty and admitted the narcotics prior, prison prior, and strike prior.
On November 27, 2007, Franklin filed a motion to withdraw his guilty plea on the basis his attorney was ineffective. In a declaration, he complained that his attorney had advised him that he would try to have Franklin placed in the Delancy Street program and advised him not to take the district attorney's plea agreement for an eight-year term. When the case was assigned for trial, Franklin claimed he learned for the first time he "was facing up to 13 years in prison" and the district attorney was opposed to the Delancy Street program placement. His attorney told him he had no defense for a trial even though Franklin had told him the cocaine base was for personal use only. Franklin pleaded guilty only because he was under extreme stress and was pressured by his attorney.
Following a hearing, where Franklin was represented by an alternate public defender, the court denied the motion and proceeded to sentencing, where it imposed a total prison term of eight years.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence from the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether appellant's initial trial counsel was ineffective in failing to bring a suppression motion prior to the guilty plea; (2) whether appellant's motion to withdraw his guilty plea was properly denied; and (3) whether the alternative public defender was ineffective in failing to obtain the testimony of appellant's prior attorney at the hearing to withdraw his guilty plea.
We granted Franklin permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Franklin on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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