THE PEOPLE v. DALONTE ANDREWS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DALONTE ANDREWS, Defendant and Appellant.

B224730

Decided: March 30, 2011

Dalonte Andrews, in pro. per.;   and Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

On September 10, 2009, an information was filed charging appellant Dalonte Andrews and a codefendant with three felony counts.1  Count 1 charged Andrews with attempted willful, deliberate, and premeditated murder (Pen.Code, §§ 664, 187, subd. (a)), committed willfully and with premeditation within the meaning of section 664, subdivision (a).   Count 2 charged Andrews with evading an officer in violation of section 2800.2, subdivision (a) of the Vehicle Code. And count 4 charged Andrews with unlawfully taking a vehicle in violation of section 10851, subdivision (a) of the Vehicle Code.2

The information charged that count 1 was a serious felony (§ 1192.7, subd. (c)(8)), and a violent felony (§ 667.5, subd. (c)(8)), based on allegations that Andrews personally and intentionally discharged a handgun, and personally used a handgun. (§§ 12022.53, subds.(b), (c), 1203.06, subd. (a)(1), 12022.5, subd. (a).)  And the information alleged as to count 1 that Andrews had committed the charged offense for the benefit of, at the direction of, and in association with, a criminal street gang. (§ 186.22, subd. (b)(1)(C), also classifying that offense as a serious felony. (§ 1192.7, subd. (c)(28).)

The charges arose from an apparent drive-by shooting on the afternoon of June 5, 2009, in the Pasadena area, in which the victim, a pedestrian, was shot in the buttocks.   The incident was witnessed by two plainclothes Los Angeles police officers in an unmarked car, who called 9–1–1, radioed the car's description, and followed the car.   The officers were still following the car when it was pulled over by the California Highway Patrol on a freeway offramp.   Andrews was driving the car.3

On March 24, 2010, pursuant to a plea agreement and with Andrews's consent, the court granted the People's motion to amend the information to add a count 6, charging Andrews and his codefendant with assault likely to produce great bodily injury (§ 245, subd. (a)), with enhancements for gun use (§ 12022.5, subd. (a)), and gang involvement. (§ 186.22, subd. (b)(1)(C).)  After an extensive waiver of rights, Andrews entered a plea of no contest to count 6 and the charged enhancements.   All other counts were then dismissed.

That same day Andrews was sentenced pursuant to the plea agreement to the upper term of four years for the assault conviction, with an additional four years for the gun use (§ 12022.5, subd. (a)), for a total sentence of eight years.   Also pursuant to the plea agreement, punishment for the gang allegation was ordered stayed.   Andrews was credited with a total of 336 days of presentence custody credits, consisting of 293 days of actual presentence custody, plus 43 days of conduct credits.4

On May 20, 2010, Andrews filed his notice of appeal.   We appointed counsel to represent Andrews on appeal.   After examining the record, on December 7, 2010 counsel filed an opening brief raising no issues and asking the court to make an independent review of the record for appealable issues.

We have conducted an independent review of the record, and have determined that nothing in the record indicates the existence of arguable issues on appeal.  (People v. Kelly (2006) 40 Cal.4th 106, 109–110;  People v. Wende (1979) 25 Cal.3d 436, 441.)

We therefore will affirm the judgment.

We acknowledge receipt of Andrews's letter on January 3, 2010, in which Andrews, in pro per, alleges that the amended abstract of judgment erroneously indicates a term of four years for the gang enhancement, marked on the abstract as “S” for “stayed.”   Andrews's letter urges that because that four-year term is stayed, “my term should be for four years and not the eight years as indicated.”   He argues that “I agreed to a plea for four yrs.   Not the eight years․”  Andrews's counsel has made no further filing.

We have reviewed the record with respect to Andrews' sentencing, and conclude that it discloses no basis on which to argue that the amended abstract is in error.   Andrews is correct that the amended abstract of judgment identifies his term as a total of eight years:  four years for the assault conviction, with a four-year enhancement for gun use, and a gang enhancement stayed. (§ 12022.5, subd.(a).)  But his contention that his plea agreement was for four years, not for eight years, is unambiguously contradicted by the record.

The transcript of proceedings with respect to the plea agreement reflects the following (with relevant language in boldface):

On March 16, 2010, Andrews was present in the courtroom, represented by counsel, when the terms of the proposed plea agreement were recited for the record.  “That offer was to have both defendants plead to a 245(a)(1).   Actually, (a)(2), I think.   Because we have a firearm.   But also they would admit the 12022.5 allegation, for a total of eight years.”   The proceeding ended that day in order to give counsel and the defendants time to consider the proposed agreement.

On March 24, 2010, Andrews was again present in the courtroom, represented by counsel.   The court recapped the proposed agreement for the defendants, concluding with the provision that they “would enter guilty or no contest pleas to count 6, admit both allegations.   Each would be sentenced to eight years in state prison.   Comprised of four years for count 6—that is the high term—plus four years, that is the mid term on the 12022.5(a) allegation.   And the 186.22(b)(1)(C) sentence would be stayed.”

The court then asked counsel, and each defendant personally, “Is that your understanding?” of the proposed agreement, to which Andrews responded “Yeah.” The court then asked “And you're going to plead to a 245(a)(2), a use allegation, and a gang allegation.   And you're going to get eight years.   Is that your understanding?”   To which Andrews responded, “Yes.” And when the court then asked “Is that what you want to do, Mr. Andrews?”   Andrews responded “Yeah.”

After Andrews was advised about various constitutional rights he was waiving in order to accept the proposed plea, he entered the plea and was sentenced in accordance with the agreement and the court's admonitions.   Because the record contains nothing that could impeach Andrews's unambiguous express assent to the four-year term, we conclude that no further proceedings in this appeal are justified.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

FN2. Count 3 was dismissed, and Andrews was not charged in count 5..  FN2. Count 3 was dismissed, and Andrews was not charged in count 5.

FN3. These facts are from the preliminary hearing testimony..  FN3. These facts are from the preliminary hearing testimony.

FN4. This court has received an amended abstract of judgment reflecting custody credits in these amounts, dated November 24, 2010, correcting an earlier error in the custody credit amounts..  FN4. This court has received an amended abstract of judgment reflecting custody credits in these amounts, dated November 24, 2010, correcting an earlier error in the custody credit amounts.

MALLANO, P. J. JOHNSON, J.