Filed 4/11/14 P. v. Fullen 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059770

v.                                                                       (Super.Ct.No. FSB1104063)

JOHN HOYT FULLEN,                                                        OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Jr., Judge. Affirmed.

         Jessica C. Butterick, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant John Hoyt Fullen pled no contest to misdemeanor

charges of burglary (count 3; Pen. Code, § 459)1 and petty theft (count 4; § 484). The

court granted defendant three years’ probation. After defendant filed the notice of

         1   All further statutory references are to the Penal Code unless otherwise indicated.

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appeal, this court appointed counsel to represent defendant. 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 brief statement of the facts, and identifying three potentially arguable issues: 1)

whether defendant’s plea was constitutionally valid; 2) whether there was a proper factual

basis for the plea; and 3) whether the court abused its discretion by denying defendant’s

request for a certificate of probable cause. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND2

         On May 22, 2011, Costco loss prevention officer Jeffery Martin spotted defendant

and his female codefendant walking around the store placing movies and batteries in a

black diaper bag.3 They paid for some merchandise, but exited the store without paying

for the items in the diaper bag. Martin, the manager, and several other Costco employees

contacted the suspects in the parking lot. Martin identified himself as a loss prevention

agent.

         Defendant told the female to run. Martin grabbed the diaper bag which was on the

woman’s arm; she was also carrying a baby. The woman forcibly removed the bag from

Martin’s grasp and ran. Martin did not pursue her because he was afraid an altercation

would injure the child. Defendant and the woman fled in a vehicle during which they

struck another car in the parking lot.


         2   We take our facts from the police reports and the preliminary hearing transcript.

         3   Defendant’s codefendant is not a party to this appeal.

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       Internal surveillance cameras captured defendant and the woman while they were

inside the store being pursued by Martin undercover. Martin recorded the confrontation

outside the store on his cell phone. Martin was able to identify defendant by defendant’s

Costco membership transaction log created when he purchased the other items that day.

       The People charged defendant by information with second degree robbery (count

1; § 211) and second degree commercial burglary (count 2; § 459). Defendant signed and

initialed a plea form in which he pled nolo contendre to added misdemeanor counts 3 and

4 in return for dismissal of the count 1 and 2 charges and an agreement he would be

granted three years’ probation. Defendant signed and initialed portions of the form

indicating he understood and waived his constitutional rights. Defendant’s attorney

signed the form reflecting she had explained to defendant his rights and the consequences

of the plea.

       On the same day, the court orally took defendant’s plea. Defendant informed the

court he had gone over the plea form with his attorney and understood everything in it.

The court did not go over defendant’s rights, take defendant’s waiver of those rights, or

obtain a factual basis for the plea.

       Defendant filed a notice of appeal in which he requested a certificate of probable

cause. Defendant enumerated four bases for the issuance of a certificate of probable

cause: 1) he is innocent; 2) he believed all the charges against his codefendant would be

dropped pursuant to his plea; 3) he believed he was only pleading to one offense of petty

theft, not two offenses; and 4) he did not understand that as a consequence of his plea his



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registration level in Arizona would be elevated.4 The court denied his request for a

certificate of probable cause.

                                       DISCUSSION

       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have independently reviewed the record for potential error and find no arguable issues.

(People v. Marlow (2004) 34 Cal.4th 131, 147 [Constitutional validity of plea reviewed

under the totality of the circumstances.]; See People v. Tigner (1982) 133 Cal.App.3d

430, 435 [Failure of court to take adequate factual basis for plea subject to harmless error

where sufficient documentary information in the record so provides.]; People v. Castelan

(1995) 32 Cal.App.4th 1185, 1188 [The denial of a request for certificate of probable

cause can only be challenged by petition for writ of mandate.].)

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                CODRINGTON
                                                                                           J.
We concur:


RICHLI
                 Acting P. J.


MILLER
                            J.

       4   Defendant is a registered sex offender in Arizona.

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