P. v. Chavez
Filed 9/23/13 P. v. Chavez CA2/7
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE ANDREA CHAVEZ,
Defendant and
Appellant.
B247623
(Los Angeles County
Super. Ct. No. BA399303)
APPEAL from a judgment of the Superior Court of
County, William N. Sterling, Judge. Affirmed.
Richard L. Fitzer, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and
Respondent.
_____________________
>
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Jose Andrea
Chavez, armed with a baseball bat, entered three fast food restaurants,
threatened on-duty employees, and attempted to break open numerous cash
registers. Los Angeles Police Department
officers arrested Chavez, who was charged by information with one count of
second degree robbery (Pen. Code, § 211)
(§§ 211, 664) with special allegations he had used a deadly and dangerous
weapon to commit the attempted robberies (§ 12022, subd. (b)(1); counts 2
& 3). Represented by counsel, Chavez
pleaded not guilty to the charges and denied the special allegations.
At a
pretrial conference on August 29,
2012 the trial court declared a doubt about Chavez’s mental
competence under section 1368. The court
suspended criminal proceedings and ordered an examination of Chavez by a
court-appointed mental health expert. At
a hearing on October
19, 2012 the court reviewed a psychiatric evaluation prepared by
the court-appointed expert, found Chavez competent to stand trial under section
1368, and resumed criminal proceedings. The court also heard and denied Chavez’s
requests to have new counsel appointed for him under People v. Marsden (1970) 2 Cal.3d 118.
On January 30, 2013 Chavez agreed to enter into a
negotiated plea of no contest to second degree robbery in count 1 in exchange for a sentence of five years. Chavez then changed his mind and
wanted to plead no contest to both count 1 and attempted second degree robbery
in count 2 as strikes, in exchange for a state prison sentence of two years,
with the remaining count and special allegations dismissed. By doing so, Chavez essentially
agreed, against the advice of his attorney, to “take the two strikes for two
years†rather than five years in state
prison.
The
transcript of the plea hearing establishes that the trial court advised Chavez
of his constitutional rights and the
consequences of his plea. Chavez waived
his constitutional rights and acknowledged that he understood the consequences
of his plea. Counsel for Chavez
stipulated to a factual basis for the plea.
The trial court found that Chavez had knowingly, voluntarily, and
intelligently waived his constitutional rights and entered his no contest
plea. In accordance with the plea
agreement, the court sentenced Chavez to concurrent lower terms of two years
for second degree robbery and 16 months for attempted second degree
robbery. The trial court ordered Chavez
to pay on each count a $40 court operations assessment and a $30 criminal
conviction assessment, and it ordered him to pay a $10 crime prevention
fine. The court imposed a $240
restitution fine and imposed and suspended a $240 parole revocation fine. The trial court awarded Chavez a total of 250
days of presentence credit (218 actual days and 32 days of conduct
credit). The court dismissed the
remaining count and special allegations on the People’s motion.
Chavez
filed a timely notice of appeal. He
checked the preprinted boxes indicating his appeal was “based on the sentence
or other matters occurring after the plea.â€
He requested but did not obtain a certificate
of probable cause.
We
appointed counsel to represent Chavez on appeal. After an examination of the record, counsel
filed an opening brief raising no issues.
On June 28, 2013, we advised Chavez he had 30 days to personally submit
any contentions or issues he wished us to consider. We have received no response to date.
With respect
to potential sentencing or post-plea issues that do
not in substance challenge the validity of the plea, we have examined the
record and are satisfied that Chavez’s attorney has fully complied with the
responsibilities of counsel and that there is no arguable issue. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284
[120 S.Ct. 746, 145 L.Ed.2d 756]; People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v.
DISPOSITION
The judgment is affirmed.
SEGAL.
J.
We concur:
WOODS,
Acting P. J.
ZELON, J.
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
