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Filed 6/1/15 P. v. King CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. KEVIN EUGENE KING,

Defendant and Appellant. C076193 (Super. Ct. No. 14F00092)

Appointed counsel for defendant Kevin Eugene King has asked this court to
review the record to determine whether there exist any arguable issues on appeal. ( People v. Wende (1979) 25 Cal.3d 436 ( Wende ).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.2 I We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) Defendant was charged by criminal complaint with possession of a controlled substance in violation of Health and Safety Code section 11377, su bdivision ( a) (count

one ) , second degree burglary in violation of Penal Code section 459 (count two), 1 and petty theft with priors in violation of section 666 (count three). With regard to count three, the complaint alleged four prior convictions for which defendant was imprisoned as a condition of probation. The complaint further alleged two prior serious felony convictions within the meaning of sections 667.5, subdivision (c) and 1192.7,
subdivision (c).
Defendan t pleaded no contest to count three in exchange for a low

- term sentence of 16 months in state prison. He also agreed to a Cruz waiver, 2 allowing him to be released until sentencing subject to the conditions that he appear in court on February 6, 2014, for the sentencing hearing and be prepared to surrende r, that he stay away from the Food Source store on Mack Road in Sacramento, and that he obey all laws. The trial court advised defendant, and defendant agreed, that he would not have the right to withdraw his plea under the Cruz waiver , and in the event he failed to abide by the conditions of the waiver, he would be subject to the maximum upper term of three years in state prison. The factual basis to substantiate the plea is as follows: On January 3, 2013, defendant stole food from th e Food Source located on Mack Road in Sacramento. Defendant had previously been convicted of the following offenses,

1 Undesignated statutory references are to the Penal Code.

2 People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 ( Cruz ).3

for which he served terms of imprisonment as a condition of probation: a 1989 burglary , a 1994 burglary , a 2003 petty theft , and a 2009 p etty theft with a prior. At the February 6, 2014, sentencing hearing, the trial court found defendant
violated the conditions of his Cruz waiver when, on January 31, 2014, he was arrested and charged with misdemeanor violations of Health and Safety Code s ection 11364 and Penal Code section 647, subdivision (f). The charges arose after the Sacramento County Sheriff’s Department responded to a call involving an argument between defendant and
his brother and discovered defendant was under the influence of me thamphetamine and in possession of drug paraphernalia. The court denied probation and sentenced defendant to state prison for the upper term of three years, awarding him 28 days of custody credits plus 28 days of conduct credits. (§ 4019.) The court imp osed a restitution fine of $300 (§ 1202.4, subd. (b)(1)) and imposed but stayed a parole revocation restitution fine in the same amount (§ 1202.45). The court further imposed a $30 court facility fee (Gov. Code, § 70373) and a $40 court security (now oper ations) fee (§ 1465.8, subd. (a)(1)), and ordered victim restitution (§ 1202.4, subd. (f)). The court granted the People’s motion to dismiss all remaining charges, and the People agreed not to file new charges based on the
incident between defendant and h is brother, in the interest of justice. Defendant filed a timely notice of appeal. The trial court denied his request for a certificate of probable cause. (§ 1237.5.) On December 4, 2014, pursuant to Proposition 47 (adding § 1170.18; approved by
the vo ters, Gen. Elec. (Nov. 4, 2014)), the trial court redesignated defendant’s felony conviction for petty theft with priors (§ 666) as a misdemeanor conviction for petty theft (§ 484) and modified his sentence to one year in the county jail with credit for ti me served of 319 actual days, followed by one year of parole.
II Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal.4

( Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief raising various claims, portions of which are unintelligible. As we e xplain, none of those claims, to the extent we can decipher them, has merit. As for those claims which refer to matters that are not part of the record on appeal, we decline to consider them. ( People v. Jenkins (2000) 22 Cal.4th 900, 952;
accord , People v. Szeto (1981) 29 Cal.3d 20, 35; Cal. Rules of Court,
rule 8.204(a)(2)(C). ) The same is true for claims made in passing and without factual or legal analysis. (Cal. Rules of C ourt, rule 8.204 (a)(1)(B) ; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635 , 647 .)
A. Wende Brief Defendant takes issue with appellate counsel’s decision to file a Wende brief, questioning counsel’s motives and approach. In the absence of supporting facts, defendant fails to establish any failure on the part of appellate counsel to diligently
review the record or determine whether arguable issues exist.
B. Defendant’s Su pplemental Brief Defendant contends his p lea bargain was “taken off of the table egregiously
without good cause and taken away in bad faith .” He claims he did not violate his Cruz
waiver because he “obeyed all laws,” he stayed away from Food Source on Ma ck Road, he “showed up” for sentencing on the allotted date and time, and he “ was not in possession of any cont rolled substance.” He further claims that, although he had an argument with his brother, he “didn’t break any laws.” The recor d belies some of those
claims. The record is clear that, a s a condition of defendant’s release on the Cruz waiver, the trial court imposed several conditions, including that defendant “obey all laws.” Based on the information contained in the Sacramento County Sheriff’s Department report and supporting documentation, the trial court found, by a preponderance of the5

evidence, that defendant had committed drug

- related offenses, thus violating the “obey all laws” condition. As a result of defendant’s failure to abide by the terms and
conditions of his Cruz waiver, the trial court was no longer bound by defendant’s 16

- month plea agreement and, upon a determination of the facts by a preponderance of the evidence, was at liberty to sentence defendant to the maximum term.
Defen dant argues the court assured him that, in the event the court rejected his plea, he would be allowed to withdraw it. D efendant mistakes the court’s finding that he
violated the Cruz waiver as a rejection of his plea . Given the court’s finding that
defen dant violated his Cruz waiver by failing to obey all laws, he had no right to withdraw his plea.
Defendant claims he suffered i neffective a ssistance of c ounsel in several respects. First, he contends he did not agree to dismissal of the charges in the po lice report because
he did not c ommit those new offenses. However, the court found a preponderance of evidence showed otherwise. In any event, defendant’s consent was not required for dismissal of those charges. Second, defendant contends his court appo inted trial attorney failed to inform him that his plea bargain was being taken away . Again, defendant is mistaken. The court did not reject defendant’s plea bargain or take it away. Defendant’s failure to abide by the condition to “obey all laws” viola ted his Cruz waiver, which resulted in impos ition of the
maximum sentence. Third, defendant claims he did not understand the terms of the plea bargain or notice that an Arbuckle waiver had been entered, 3 and argues in passing that he never agreed to the Cruz waiver. Because defendant’s request for a certificate of probable cause was denied, his challenges to the validity of the plea are not properly before us on

3 People v. Arbuckle (1978) 22 Cal.3d 749 ( Arbuckle ).6

appeal. ( § 1237.5.) In any event, the record shows the trial court walked defendant through the terms, conditions, and consequences of both his plea and his Cruz waiver, and asked defendant if he understood and agreed. Defendant stated that he did. The court also noted the possibility it would not be present at the time of sentencing and inqui red whether defendant agreed that another judge could impose sentence. Defendant responded, “That would be a yes,” to which the court replied, “All right. An Arbuckle [w]aiver is entered.” Fourth, defendant claims his trial attorney failed to advise him he had a “standing righ t to withdraw his plea bargain. ” Defendant had no such right. As the court explained, defendant “would not have the right to withdraw [his] plea” if the court determined, by a preponderance of the evidence, that defendant had fail ed to abide by any
of the conditions of the Cruz waiver. That is precisely what occurred here.
Fifth , defendant claims neither his trial counsel nor his appellate counsel took the time to investigate who placed the call to the sheriff’s department regard ing the conflict
bet ween defendant and his brother, a point that defendant believes could have helped prove his innocence as to the new charges. Even assuming that were true, the charges constituting the violation of the Cruz waiver were related not to th e dispute between defendant and his brother, but rather to the drug paraphernalia found in defendant’s backpack when law enforcement officers arrived on the scene.
D efendant claims the court’s January 23, 2014 , minute order shows someone
crossed out the n otation that he entered an Arbuckle waiver and noted instead that he
entered a Cruz waiver

. Our review of the trial court’s order does not reveal any such
modification. Finally, d efendant claims that, for various reasons, he should be permitt ed to
withdr aw his plea. Again, in the absence of a certificate of probable cause, that claim is not properly before us on appeal.7

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to d efendant.
DISPOSITION The judgment is affirmed.

RAYE , P. J.

We concur:

BLEASE , J.

HULL , J.