People v. Sierra CA4/2

Filed 5/6/16 P. v. Sierra 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E064093
v. (Super.Ct.No. RIF1401613)
BERT DEWEY SIERRA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard Todd Fields,
Judge. Affirmed.
Trenton C. Packer, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, Bert Dewey Sierra, pled guilty to five counts of lewd
acts upon a minor by force, violence, and duress. (Counts 1, 2, 4, 5, & 7; Pen. Code,
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§ 288, subd. (b)(1).)1 Pursuant to his plea agreement, the court sentenced defendant to an
aggregate term of 35 years’ incarceration.
After counsel from Appellate Defenders, Inc. (ADI) filed a notice 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 three 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; and (3)
whether the trial court abused its discretion by denying defendant’s motion to withdraw
his guilty plea. We affirm.
I. PROCEDRUAL HISTORY
On April 3, 2014, the People charged defendant by felony complaint with six
counts of lewd and lascivious behavior upon minors under the age of 14 (counts 1, 2, 4,
5, 7, & 8; § 288, subd. (a)) and two counts of oral copulation or sexual penetration upon a
minor under the age of 10 (counts 3 & 6; § 288.7, subd. (b)). The People further alleged
as to counts 2 and 8 that defendant had engaged in substantial sexual conduct with a
victim under the age of 14 (§ 1203.066, subd. (a)(8)); as to count 2 that defendant had
entered an inhabited dwelling with the intent to commit a violent sex offense (§ 667.61,
subd. (c)) and the offense was committed during the commission of a burglary (§ 667.61,
1 All further statutory references are to the Penal Code unless otherwise indicated.
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subd. (e)(2)); and as to the case in its entirety, that defendant had committed sex offenses
against multiple victims (§ 667.61, subd. (e)(4)).
On February 19, 2015, defendant signed and initialed a plea agreement. One
provision of the agreement initialed by defendant expressly provides: “No one has made
any threats to me or anyone close to me, or placed any pressure of any kind on me in
order to make me plead guilty.” Another, also initialed by defendant, reads: “As part of
this plea I . . . do . . . waive any right to appeal that I may have.” Yet another provision
initialed by defendant provides that defendant understood the consequences of his plea.
Defendant signed the plea indicating: “I have read and understand this entire
document. I waive and give up all of the rights that I have initialed.” Defense counsel
signed the agreement reflecting that he was satisfied defendant understood his rights and
waiver of them, had adequate time to discuss his case with counsel, and understood the
consequences of his plea.
The court asked defendant if defense counsel went over all the rights listed on the
plea form with defendant and whether defendant understood them. Defendant responded
affirmatively. Defendant stated that he understood he was waiving his rights by entering
the plea. Defendant stated he had enough time to discuss his case with defense counsel
and signed and initialed the plea agreement after “carefully reviewing it with” his
attorney.
On May 29, 2015, newly-retained counsel for defendant filed a motion to
withdraw the plea contending defendant did not execute a knowing or intelligent waiver
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of his rights or the consequences of his plea, was induced by defense “counsel’s
overbearing and undue pressure” into entering the plea, and was denied effective
assistance of counsel. On June 11, 2015, the People filed opposition to the motion noting
defendant had been advised of all his constitutional rights, signed and initialed the plea
form, and waived his rights and entered the plea after the court orally reviewed
defendant’s rights with him.
At the hearing on the motion on June 17, 2015, the court indicated its tentative
decision to deny the motion, finding no good cause to withdraw the plea because
defendant “knowingly and intelligently, freely and voluntarily” entered the plea. The
court specifically noted defendant had initialed the provision of his plea agreement which
reflected no one had placed any pressure upon him to enter the plea. The court also
found defendant had failed to prove defense counsel had provided ineffective assistance
of counsel. After providing defense counsel the opportunity to argue the matter, the court
denied the motion.
Counsel from ADI filed the appeal on behalf of defendant. Counsel challenged
the validity of the plea and requested issuance of a certificate of probable cause stating
that “[d]efendant told ADI he is appealing the denial of his motion to withdraw the plea.”
The court denied the request.
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
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have independently reviewed the record for potential error and find no arguable issues.
(People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1096 [the burden is on the defendant to
show good cause to withdraw the plea and an appellate court will uphold the denial of a
motion to withdraw a plea unless there is a clear showing of abuse of discretion]; People
v. Johnson (2009) 47 Cal.4th 668, 679 [“A defendant must obtain a certificate of
probable cause in order to appeal from the denial of a motion to withdraw a guilty plea
. . . .”]; People v. Castelan (1995) 32 Cal.App.4th 1185, 1188 [the denial of a request for
a certificate of probable cause can only be challenged by the filing of a petition for writ
of mandate].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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