Filed 3/17/16 P. v. Rocha 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064317

v.                                                                      (Super.Ct.No. FSB1300892)

CERAFIN RODRIGUEZ ROCHA,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Katrina West,

Judge. Affirmed.

         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
         Pursuant to a plea agreement, defendant and appellant Cerafin Rodriguez Rocha

pled no contest to attempted murder (Pen. Code,1 §§ 664/187, subd. (a), count 1), and

assault with a firearm (§ 245, subd. (a)(2), count 2), and he admitted a firearm

enhancement under section 12022.53, subdivision (b). A trial court sentenced him to a

total of 20 years in state prison, pursuant to the plea agreement.

         Defendant filed a letter in propria persona, which was treated by the court clerk as

a notice of appeal. Appellate counsel subsequently filed an amended notice of appeal,

based on the sentence or other matters not affecting the validity of the plea. We affirm.

                               PROCEDURAL BACKGROUND

         On September 12, 2014, an information was filed charging defendant with

attempted murder (§§ 664/187, subd. (a), count 1), and assault with a firearm (§ 245,

subd. (a)(2), count 2). The information also alleged with respect to both counts that

defendant committed the crimes to benefit a criminal street gang (§ 186.22,

subd. (b)(1)(A)), and that he personally inflicted great bodily injury (§ 12022.7,

subd. (a)). As to count 1, firearm enhancements were alleged pursuant to section

12022.53, subdivisions (b), (c), and (d). As to count 2, firearm enhancements were

alleged pursuant to section 12022.5, subdivisions (a) and (d). The information further

alleged that defendant had a prior strike conviction (§ 1170.12, subds. (a)-(d) & 667,

subds. (b)-(i)), and that he had served two prior prison terms (§ 667.5, subd. (b)).

Defendant pled not guilty to all charges.

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


                                                2
       On February 3, 2015, defendant, who was represented by counsel, entered a plea

agreement and withdrew his plea of not guilty. Before accepting the plea, the court

questioned him. The court asked if defendant had adequate time to discuss his case with

his attorney and to discuss all of his rights, all penalties and punishments, and the nature

of the charges. Defendant replied that he had. The court asked if he understood all of his

rights, the penalties and punishment, and the nature of the charges. Defendant replied

that he did. Finally, the court asked defense counsel if he agreed that he had adequate

time to discuss everything with defendant, and defense counsel said that he had.

Defendant pled no contest to counts 1 and 2 and admitted the firearm enhancement

pursuant to section 12022.53, subdivision (b). Counsel stipulated that there was a factual

basis for the plea. The court then found that the plea and waiver of constitutional rights

were knowingly and intelligently made, and it set a sentencing hearing.

       Prior to sentencing, defendant told the court he wanted to withdraw his plea

because his retained attorney did not adequately advise him of the nature of his plea

agreement. The court appointed a public defender to consider filing a motion to

withdraw the plea. The public defender determined there was no basis to withdraw the

plea. At a sentencing hearing on August 4, 2015, defendant claimed he did not spend any

time with the public defender, and that he still wanted to withdraw his plea. Thus, the

court reappointed the public defender’s office for consideration of the matter again.




                                              3
       At a hearing on August 7, 2015, the public defender again found no basis to

withdraw the plea. Defendant again asked the court to allow him to withdraw his plea.

The court denied the request.

       On August 18, 2015, defendant requested a continuance so that he could hire an

attorney to file a motion to withdraw his plea. The court denied the request. The court

announced it would proceed with sentencing, and defendant asked if he could represent

himself. The court denied that request, as well. It then sentenced him to a total of 20

years in state prison, pursuant to the plea agreement. The court dismissed the remaining

allegations.

                                      DISCUSSION

       Defendant appealed and, upon his request, this court appointed counsel to

represent him. 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, setting forth a statement of

the case and two potential arguable issues: (1) whether the court erred in summarily

denying defendant’s request to represent himself; and (2) whether defendant’s plea was

constitutionally valid. Counsel has also requested this court to undertake a review of the

entire record.

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

he has not done.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.




                                             4
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               HOLLENHORST
                                                         Acting P. J.


We concur:


McKINSTER
                       J.


MILLER
                       J.




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