Filed 5/1/15 P. v. Owens 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                         D066368

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE333134)

WILLIAM LEROY OWENS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, John M.

Thompson, Judge. Affirmed.

         Ava R. Stralla, under appointment by the Court of Appeal; William Leroy Owens,

in pro. per., for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         William Owens pled nolo contendere to robbery (Pen. Code, § 211)1 and assault

with a deadly weapon (§ 245, subd. (a)(1)), a serious felony within the meaning of




1        All statutory references are to the Penal Code.
section 1192.7, subdivision (c)(23). He also admitted he had personally used a deadly

weapon while committing the robbery and had suffered seven no-probation priors; two

prison priors; two strike priors (a 2009 robbery and a 2001 robbery adjudication as a

juvenile) and a serious felony prior (the 2009 robbery).

       The court struck the various enhancement allegations except for the 2009 serious

felony prior and strike prior, and sentenced Owens to nine years in prison (double the low

term of two years for the robbery plus five years for the serious prior felony). The court

also imposed, but stayed, a concurrent three-year midterm sentence for the assault with a

deadly weapon conviction.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On August 25, 2013, a loss prevention associate at Walmart observed Owen

pushing a shopping cart inside the store. Because Owens was loudly cursing at someone

while talking on a cell phone, he decided to watch Owens. The loss prevention officer

observed Owens select food items, a child's scooter and helmet from different locations

within the store and place those items in the shopping cart. As he continued watching

Owens, he saw him place the merchandize into Walmart shopping bags that were already

in the cart.

       As the loss prevention associate, pushing an empty shopping cart, approached

Owens, he noticed Owens was holding an ax and appeared as if he were "about to swing

it." The loss prevention officer backed up and pushed his cart towards Owens. At that



                                             2
point, Owens put the ax in his cart, grabbed some bags that were in the cart and ran out of

the store.

       Owens was arraigned and held to answer on a felony complaint charging the same

crimes, enhancements and prior allegations to which he ultimately entered a plea of no

contest. On October 16, Owens and his attorney attended a readiness conference where a

seven-year eight-month plea agreement was discussed, but not finalized, and the trial date

confirmed. On October 24, the court conducted a Marsden hearing at Owens's request

and denied the motion. Four days later, Owens and his attorney discussed the proposed

plea agreement and completed a change of plea form premised on the seven-year eight-

month offer.

       As the October 30 trial date approached, the prosecutor informed Owens's counsel

the offer was "no longer on the table." On October 30, Owens entered a nolo contendere

plea to the charges, enhancements, and priors noted above and agreed he was doing so in

exchange for the court's commitment to impose a sentence not to exceed nine years. On

December 2, the date originally set for sentencing, the court granted defendant's second

Marsden motion and appointed new counsel.

       New counsel filed a motion to withdraw Owens's no-contest plea, contending that

Owens's original attorney had pressured him to enter the plea, he was in a state of despair

when he entered the plea, and his attorney had told him he could "take the plea back at

any time . . . before sentencing.



                                             3
       Both Owens and his original attorney testified. The court denied the motion,

noting he specifically recalled the change of plea hearing and observing, "The pleadings,

the change of plea soliloquy, the discussions we had, the history of the case, leads me to

the . . . inescapable conclusion, that when Mr. Owens appeared before me in Department

11 for trial, that the People's position being we are going . . . for life on this case, led Mr.

Owens to the conclusion, as bad as the nine was, it was a hell of a lot better than the

downside of going to trial."

       The court then imposed a nine-year prison sentence, the upper limit under the plea

agreement.

                                        DISCUSSION

       Appointed appellate counsel has filed a brief setting forth the factual and

procedural history of the case. 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 was properly advised of the consequences

of entering a no-contest plea; (2) whether he was advised of his constitutional rights and

waived them before he entered a no-contest plea; and (3) whether the court abused its

discretion in denying appellant's motion to withdraw his plea prior to sentencing.

       We granted Owens permission to file a brief on his own behalf. He has done so

and has raised two issues.



                                               4
       First, he challenges the change of plea form because neither he, nor his attorney,

"confirmed" their signatures by dating the form and he did not provide a fingerprint to

"confirm" his agreement with the change of plea. The arguments have no merit. The

court minutes, the transcript of the change of plea hearing and the transcript of the

hearing on the motion to withdraw the plea make clear he entered the plea freely and

voluntarily, he understood the terms and consequences of the plea, and he was advised of

and waived his constitutional rights when he entered the plea in open court on October

30. This conclusion is not altered by the fact he did not date the change of plea form and

his fingerprint is not placed on page 3 of the form.

       Second, relying on statements the judge made at the second Marsden hearing,

Owens asserts that he was entitled to a sentence of seven years eight months instead of

nine years. Although appellant correctly points out that during the Marsden hearing the

court referenced both a nine-year sentence and a seven-year eight-month sentence,

appellant's argument fails. In granting the Marsden request, the court noted that

appellant's original counsel had done "a tremendous job in negotiating the plea where he

did" but because there was "an irreparable problem between Mr. Owens and his current

counsel," he concluded it appropriate to appoint new counsel who would be given the

opportunity to file a motion to withdraw the plea.

       At the hearing on the motion to withdraw the plea, the court heard testimony

concerning several matters including the history of plea negotiations in this case, the

details of Owens's change of plea hearing, and Owens's claim his attorney misled him and

                                             5
pressured him to enter the no-contest plea. The hearing also included testimony from

appellant's original counsel explaining his investigation of the case, including review of a

videotape of the incident, and his ultimate assessment that going to trial carried a

substantial risk of appellant being convicted of all charges and receiving a sentence far in

excess of nine years. Based on the evidence presented, the court denied Owens's motion

to withdraw his plea, concluding Owens had voluntarily and knowingly entered a plea of

no contest in return for a sentence not to exceed nine years. The court did not abuse its

discretion in denying the motion and in imposing a sentence of nine years.

       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 Owens on appeal.




                                              6
                                 DISPOSITION

     The judgment is affirmed.




                                               HALLER, Acting P.J.

WE CONCUR:



MCDONALD, J.



AARON, J.




                                      7
