People v. Pierce CA2/7 ( 2013 )

Filed 12/11/13 P. v. Pierce CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B249359
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA378574)
v.
WILLIAM FRANK PIERCE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, James R.
Brandlin and Charlaine F. Olmedo, Judges. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
______________________
FACTUAL AND PROCEDURAL BACKGROUND
After the police arrested defendant William Frank Pierce for firing three shots at a
car in which Geneva Mason and her infant son were sitting, the District Attorney charged
Pierce in a third amended information with two counts of attempted willful, deliberate,
and premeditated murder (Pen. Code, §§ 187, subd. (a), 664; counts 1 and 3),1 two counts
of assault with a firearm (§ 245, subd. (a)(2); counts 4 and 5), and one count of
possession of a firearm by a felon (§ 12021, subd (a)(1); count 2). The amended
information specially alleged as to counts 1 and 3 that Pierce had personally used and
discharged a firearm (§§ 12022.53, subds. (b) and (c)), and as to counts 1 and 5 that
Pierce personally used a firearm (§ 12022.5, subd. (a)). The information alleged as to
counts 1 and 3 that Pierce had suffered a prior serious felony conviction (§ 667, subd.
(a)(1)), and as to counts 1, 2, and 3 that Pierce had suffered a prior conviction within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12), for which he served
one separate prison term (§ 667.5, subd. (b)). Represented by counsel, Pierce pleaded not
guilty to the charges and denied the special allegations.
On the morning jury trial was scheduled to commence, Pierce, in exchange for a
sentence of 26 years, 4 months, agreed to enter into a negotiated plea of guilty to two
counts of assault with a firearm, as charged in counts 4 and 5, with admission of the
special allegations that he had personally used a firearm to commit the offenses and had
previously suffered a conviction for robbery as a prior strike and a prior serious felony
conviction. The prosecutor advised Pierce of his constitutional rights and the
consequences of his plea. Pierce waived his constitutional rights and acknowledged that
he understood the consequences of his plea. Counsel for Pierce stipulated to a factual
basis for the plea. The trial court found that Pierce had knowingly, voluntarily, and
intelligently waived his constitutional rights, and entered his guilty plea.
1 All further statutory references are to the Penal Code.
2
At the sentencing hearing before a different judge, the court sentenced Pierce in
accordance with the plea agreement to an aggregate state prison term of 26 years,
4 months, consisting of a term of eight years (double the four-year upper term under the
three strikes law) on count 4, plus the upper term of 10 years for the firearm-use
enhancement; and a term of two years (double the one-third middle term) on count 5, plus
one year, four months (double the one-third middle term) for the firearm-use
enhancement; plus five years for the prior serious felony enhancement. The court also
amended the information so that it would be consistent with the plea agreement by
alleging that the firearm use enhancement under section 12022.5, subdivision (a), apply
to counts 1 through 5, and that the prior serious felony and prison term enhancements
apply to counts 4 and 5 as well as counts 1 through 3. The court ordered Pierce to pay on
each count a $40 court operations assessment and a $30 criminal conviction assessment.
The court imposed a $240 restitution fine and imposed and suspended a $240 parole
revocation fine. The court awarded Pierce a total of 1,028 days of presentence custody
credit (893 actual days and 135 days of conduct credit). The court dismissed the
remaining counts and special allegations on the People’s motion.
We granted Pierce relief from default for failure to file a timely notice of appeal.
In his notice of appeal, Pierce checked the boxes indicating his appeal was “based on the
sentence or other matters occurring after the plea” and challenged “the validity of the plea
or admission.” He also checked the box marked “Other” and asserted his counsel
provided ineffective assistance. The trial court granted Pierce’s request for a certificate
of probable cause.
DISCUSSION
We appointed counsel to represent Pierce on appeal. After an examination of the
record, counsel filed an opening brief raising no issues. On September 18, 2013 we
advised Pierce that he had 30 days in which to personally submit any contentions or
issues he wished us to consider. We have received no response to date.
3
The record does not support Pierce’s suggestion in his application for relief from
default that his plea was not knowing, voluntary, and intelligent. The record also fails to
demonstrate that his attorney provided ineffective assistance at any time during the
proceedings in the trial court. (See Strickland v. Washington (1984) 466 U.S. 668, 686
[104 S. Ct. 2052, 80 L. Ed. 2d 674].) To the extent Pierce is contending that his attorney
gave him bad advice about the length of his sentence, we cannot address this issue
because it depends on matters outside the record on appeal and is more appropriately
raised on habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266-267.)
With respect to other potential sentencing or post-plea issues that do not in substance
challenge the validity of the plea, we have examined the record and are satisfied Pierce’s
attorney on appeal has fully complied with the responsibilities of counsel and there are no
arguable issues. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S. Ct. 746, 145
L. Ed. 2d 756]; People v. Kelly (2006) 40 Cal. 4th 106, 118-119; People v. Wende (1979)
25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
SEGAL, J.*
We concur:
WOODS, Acting P. J. ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Pierce2
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