People v. Bishop CA5 ( 2021 )

Filed 9/7/21 P. v. Bishop CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081296
Plaintiff and Respondent,
(Fresno Super. Ct. No. F19904586)
v.
GARY ALAN BISHOP, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M.
Corona, Judge.
Joseph M. Ahart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and De Santos, J.
INTRODUCTION
Appellant and defendant Gary Alan Bishop entered into a negotiated disposition to
felony charges and was sentenced to four years. On appeal, his appellate counsel has
filed a brief that summarizes the facts with citations to the record, raises no issues, and
asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d
436.) We affirm.
PROCEDURAL BACKGROUND
On July 12, 2019, a felony complaint was filed in the Superior Court of Fresno
County charging defendant with count 1, unlawfully taking or driving a vehicle with
intent to deprive the owner of possession, a U-Haul (Veh. Code, § 10851, subd. (a)) and
count 2, receiving a stolen motor vehicle, a U-Haul (Pen. Code, § 496d, subd. (a)),1 with
a prior conviction allegation for receiving a stolen motor vehicle (§ 666.5, subd. (a)), and
three prior prison term enhancements (§ 667.5, subd. (b)).
On July 26, 2019, defendant pleaded no contest to a felony violation of count 1,
admitted the value of the property exceeded $950, and pleaded no contest to the prior
conviction allegation under section 666.5, for an indicated lid of four years, with three
years in custody and one year of mandatory supervision, and dismissal of the other
charges. The court advised defendant of his constitutional and statutory rights, defendant
said he understood and waived his rights, and said no one made any promises or threats
to get him to enter the plea, he did not have any physical or mental health issues that
would prevent him from clearly thinking about his decision to enter the plea, and he did
not have any questions. The court found defendant knowingly, intelligently, and
voluntarily waived his constitutional rights and entered his plea.
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
The court granted the People’s motion to dismiss count 2 and the prior prison term
enhancements. Defendant asked to be sentenced to four years without mandatory
supervision.
On the same day, the court sentenced defendant to the upper term of four years in
local custody for count 1, without any mandatory supervision, based on defendant’s
request and without objection.
The court imposed a $300 restitution fine (§ 1202.4 subd. (b)) and suspended the
same amount pending successful completion of parole (§ 1202.45), and also imposed a
criminal conviction assessment of $30 (Gov. Code, § 70373), and a court security fee of
$40 (§ 1465.8, subd. (a)(1)).
Motion to withdraw plea
On or about November 7, 2019, defendant sent a letter to the trial court to
withdraw his plea, claimed his attorney did not explain the plea agreement, and asked to
file a notice of appeal.
On December 5, 2019, the trial court denied defendant’s motion to withdraw his
plea because he did not object to the plea agreement at the time of sentencing, and the
time for filing a notice of appeal had run.
Belated notice of appeal
On December 17, 2019, defendant filed a petition with this court for a writ of
habeas corpus for leave to file a belated appeal. Defendant asserted he was coerced into
accepting the plea agreement, he was not taking his psychotropic medication at the time
of his plea, and he was under the influence of methamphetamine when he entered his
plea. Defendant also asserted his attorney visited him on August 29, 2019, and agreed to
file a timely notice of appeal, but defendant learned the notice was not filed. The
Attorney General conceded defendant stated a prima facie case for relief from default.
On February 21, 2020, this court granted defendant’s petition to file a belated
notice of appeal and request a certificate of probable cause, and directed defendant to file
3.
these documents “on or before 60 days from the date of this opinion,” and “if the notice
and request are received on or before 60 days from the date of this opinion,” the superior
court was directed “to file the documents” and deem them as timely filed. (In re Gary
Bishop on Habeas Corpus (Feb. 21, 2020, F080420) 2020 WL 878849 [nonpub. opn.])
On March 23, 2020, defendant, an inmate in county jail, signed and mailed, in pro.
per., a notice of appeal and requested a certificate of probable cause, and claimed his
attorney coerced him to enter the plea and he was under the influence of narcotics at the
time of the plea. The notice was received by the superior court on May 19, 2020, and the
request for a certificate was granted.2
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on January 21, 2021, we
invited defendant to submit additional briefing. He has failed to do so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
2 “The prison-delivery rule … provides that a self-represented prisoner’s notice of
appeal in a criminal case is deemed timely filed if, within the relevant period set forth in
the California Rules of Court, the notice is delivered to prison authorities pursuant to the
procedures established for prisoner mail. [Citation.]” (Silverbrand v. County of Los
Angeles (2009) 46 Cal.4th 106, 110, fn. omitted; Cal. Rules of Court, rule 8.25(b)(5) [“If
the clerk receives a document by mail from an inmate or a patient in a custodial
institution after the period for filing the document has expired but the envelope shows
that the document was mailed or delivered to custodial officials for mailing within the
period for filing the document, the document is deemed timely. The clerk must retain in
the case file the envelope in which the document was received.”].)
4.