Filed 10/3/16 P. v. Rosier 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E066382

v.                                                                      (Super.Ct.No. RIF1500914)

BRIAN KENNETH ROSIER,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge.

Affirmed.

         Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant, Brian Kenneth Rosier, plead guilty to possession of

marijuana while incarcerated (count 1; Pen. Code, § 4573.8) and deterring and preventing

an officer from performing his duties by means of threats and violence (count 3; Pen.

Code, § 69). Defendant additionally admitted he suffered three prior strike convictions

and two prior prison terms. Pursuant to his plea agreement, the court sentenced

defendant to an aggregate term of imprisonment of eight years.

       After both counsel and defendant filed notices of appeal, 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 identifying four potentially arguable issues: (1) whether

defendant’s waiver of his right to appeal was valid; (2) whether the court abused its

discretion by denying defendant’s request for a certificate of probable cause; (3) whether

defendant’s guilty plea was constitutionally valid; and (4) whether there was a sufficient

factual basis for the plea. We affirm.

                              I. PROCEDURAL HISTORY

       The People charged defendant by felony complaint with possession of marijuana

while incarcerated (count 1; Pen. Code, § 4573.8), possession of marijuana for sale

(count 2; Health & Saf. Code, § 11359), deterring and preventing an officer from

performing his duties by means of threat and violence (count 3; Pen. Code, § 69), battery

while incarcerated (count 4; Pen. Code, § 4501.5), and unlawful force causing serious

bodily injury (count 5; Pen. Code, § 243, subd. (d)). The People additionally alleged



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defendant had personally inflicted great bodily injury in his commission of the count 5

offense (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), had suffered three prior

strike convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd.(c)(2)), and

had suffered four prior prison terms (Pen. Code, § 667.5, subd. (b)).

        Defendant entered into a plea agreement in which he pled guilty to counts 1 and 3,

admitted he had suffered two prior prison terms, and admitted all three prior strike

convictions. In return, defendant received an aggregate term of incarceration of eight

years and the additional charges and allegations were dismissed.

        As part of his plea agreement, defendant initialed provisions reflecting he had

been advised of his rights, understood the consequences of the plea, and was under no

threats or pressure to enter into the plea. Defendant initialed a provision indicating he

had had adequate time to discuss the matter with his attorney. Defendant waived his right

to appeal. Defendant initialed the provision providing a factual basis for the plea in that

he had done the things stated in the charges he admitted. Defendnt signed the agreement

indicating: “I have read and understand this entire document. I waive and give up all of

the rights that I have initialed. I accept this Plea Agreement.” Defendant’s attorney

signed the agreement reflecting he was satisfied defendant understood his constitutional

rights, had an adequate time to discuss the case, and understood the consequences of his

plea.




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       Before entering his plea, the court asked defendant if he understood the charges

against him; defendant responded that he did. The court explained the plea agreement to

defendant; defendant indicated he understood the agreement. The court asked if

defendant had read and understood everything in the agreement; defendant responded he

had and did. The court asked if defendant had any questions; defendant responded he did

not. The court asked defendant if any additional promises had been made or whether he

was under any threat to enter the plea; defendant responded “No.”

       The court asked if defendant wanted additional time to speak with his attorney;

defendant responded that he did not. The court asked if defendant was under the

influence of any drugs which would affect his ability to think rationally; defendant

responded that he was not.

       The court took defendant’s plea. The parties stipulated that the factual basis for

the plea could be taken from the felony complaint. The court asked defendant if it was

true he had done the things alleged; defendant responded that it was. The court found

defendant understood the charges against him, the consequences of the plea, entered into

the plea freely and voluntarily, and that defendant had knowingly and intelligently

waived his constitutional rights.

       At the next hearing, defense counsel indicated he had received a letter from

defendant asking to withdraw the plea. Defense counsel indicated the letter would




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require a Marsden1 hearing. Counsel stated it was not clear upon what basis defendant

was requesting to withdraw his plea.

       During the Marsden hearing, defendant stated that when he entered the plea he

was taking psychiatric medications for anxiety because he felt threatened by the People

due to the amount of time he was facing if he were found guilty on all the counts and

allegations in the complaint. Defendant said he was not dissatisfied with his

representation. The court stated that the motion to withdraw the plea must be done by

noticed motion to give the People the opportunity to respond. The court denied the

Marsden motion. The court continued the matter to allow counsel to investigate any

bases for filing a motion to withdraw the plea.

       At the next hearing, the court sentenced defendant. No mention was made of the

motion to withdraw the plea. Defense counsel filed a notice of appeal requesting a

certificate of probable cause as defendant “has discovered a witness who may be able to

provide new information or evidence about his case.” The court denied the request,

noting that defendant had waived his right to appeal as part of his negotiated plea.

                                    II. DISCUSSION

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




       1   People v. Marsden (1970) 2 Cal.3d 118.


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                                 III. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                    McKINSTER
                                                                J.


We concur:

RAMIREZ
                    P. J.

SLOUGH
                       J.




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