P. v.
Arias
Filed 3/1/13 P. v. Arias CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
STEVEN
ANTHONYARIAS,
Defendant and Appellant.
E057060
(Super.Ct.No. FWV1201589)
OPINION
APPEAL from the Superior Court of
County. Raymond P.
Van Stockum, Judge. (Retired judge
of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Earll M. Pott, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and
Respondent.
Defendant and appellant Steven
Anthony Arias appeals after he pleaded guilty to one count of
cohabitant, or parent of his child.
He was sentenced to the Department
of Corrections and Rehabilitation for nine years, as a second-striker, with
enhancements. He filed a notice of
appeal. We affirm.
FACTS
AND PROCEDURAL HISTORY
The record contains no factual
summary of the charged offenses or the count to which defendant pleaded
guilty. In July 2012, by a first amended
complaint, defendant was charged with 11 offenses, including four counts of
inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),
and charges of assault with a deadly weapon (Pen. Code, § 245, subd.
(a)(1)), residential burglary (Pen. Code, § 459), vandalism, and drug or
drunk driving offenses.
Before the
plead no contest to count 3, one of the corporal injury counts. Defendant also admitted a strike prior
offense and a prior prison term offense (one of three alleged), as well as an
enhancement allegation that he committed the offense (on or about June
3, 2012) while
he had been released on bail or his own recognizance (OR). The remaining counts were dismissed, as well
as two additional prior prison term allegations, and a great bodily injury
allegation.
Defendant requested immediate
sentencing, waiving a referral for a probation report. The court denied probation and sentenced
defendant to the middle term of three years on count 3, doubled to six years as
a second strike. The court imposed a
term of two years for the bail enhancement, plus one year for the prior prison
term enhancement, for a total prison term of nine years.
Defendant has appealed.
ANALYSIS
Defendant filed his notice of appeal
and requested a certificate of probable cause, specifying the appellate issue
as the inapplicability of the bail enhancement; that is, defendant asserted
that he was not in fact on bail or OR release at the time of the charged
offense. The trial court granted the
certificate of probable cause.
This court appointed
appeal. Appointed counsel has filed an
opening brief under 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, but raising no specific issues. In these circumstances, the court is obliged
to undertake a review of the entire record to determine whether any issues
exist which would, if resolved favorably to defendant, result in reversal or
modification of the judgment. (
v. Johnson (1981) 123 Cal.App.3d 106, 109-112 [Fourth Dist., Div. Two].)
Appointed counsel did identify four
potentially arguable issues: (1) whether
the bail enhancement sentence was unlawful, because defendant now claims he was
not on bail or OR release when the offense was committed; (2) whether
defendant’s admission in open court that the bail enhancement allegation was
true was constitutionally valid; (3) whether there was a sufficient
factual basis for the plea; and (4) whether the representation provided by
defendant’s trial attorney was constitutionally inadequate.
We have offered defendant an
opportunity to file a personal supplemental brief, to bring to the court’s
attention any issues he believes should be addressed, but he has not done
so. Under authority of
review of the record and find no arguably meritorious issues, either among the
issues suggested by appointed counsel (and the notice of appeal), or
otherwise.
Although defendant afterward has
contested the validity of the bail/OR enhancement, the record established a
factual basis for the admission. (See
443.) Defense counsel stipulated that
there was a factual basis in the police report for the plea. We also note that, among the dismissed
charges were another incident of corporal injury to defendant’s girlfriend and
a misdemeanor charge of vandalism at a motel, which had taken place about one
month before the count to which defendant eventually pleaded guilty. These allegations are consistent with
defendant’s release on bail or OR, as he was manifestly not in custody when he
committed the new offense a few weeks later.
The pleadings, both the original complaint and the amended complaint,
plainly set forth the allegation that defendant committed the offense in count 3
while he was out on bail or OR release.
Defendant was therefore well aware of the allegation at all times before
his plea, and never raised an objection to it.
Defendant participated in plea negotiations, which expressly included a
bargained-for admission of the bail/OR enhancement. Defendant readily and freely admitted the
truth of the allegation in open court, after also stating to the court that he
had a full opportunity to confer with counsel before entering the plea. The court fully advised defendant of his
constitutional rights and of the consequences of his plea. The plea bargain included a no contest plea
to a single count, in exchange for dismissal of many other charges and
attendant allegations; there was a considerable tactical advantage to defendant
in accepting the plea bargain as negotiated.
Under these circumstances,
defendant’s admission of the enhancement was supported by a sufficient factual
basis (People v. Holmes,
defendant received adequate notice and advisement (Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122), the admission of the allegation
was proper despite his later, unsupported, claim to the contrary, and his trial
counsel was not constitutionally ineffective in having defendant admit this
allegation as part of a highly advantageous plea bargain (see
1212 [“If the record does not shed light on why counsel acted or failed to act
in the challenged manner, we must reject the claim on appeal unless counsel was
asked for and failed to provide a satisfactory explanation, or there simply can
be no satisfactory explanationâ€]).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
