Filed 10/17/22 P. v. Switt 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v.
CARLOS JUAN SWITT, Defendant and Appellant. F084292 (Super. Ct. No. DF016460A)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf, Judge. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

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* Before Poochigian, Acting P. J., Detjen, J. and Snauffer, J.2

. STATEMENT OF APPEALABILITY This is an appeal from a final judgment and sentence fo llowing a plea of no

contest . (Cal. Rules of Court, rule 8.304(b)(4)(B).) It is authorized by Penal Code
section 1237. 1
STATEMENT OF THE CASE In a complaint filed on October 5, 2021, the Kern County District Attorney alleged that Switt willfully and unlawfully possessed a weapon while he was confined in a penal institution (§ 4502, subd. (a)), and that he had on June 18, 2003, been convicted of a prior felony offense, first degree burglary (§ 459), within the meaning of section 667, subdivisions (c)

- (j) and section 1170.12, subdivisions (a)

- (e). After the complaint was amended on November 5, 2021, to allege that Switt had manufactured or attempt ed to manufacture a weapon while confined in a penal institution (§ 4502, subd. (b)), Switt entered into a plea agreement pursuant to which he entered a no contest plea to the charge and admitted the strike with an indication by the court that the
strike w ould be stricken pursuant to People v. Superior Court ( Romero ) (1996)
13 Cal.4th 497 ( Romero ), and he would be sentenced to the low term of 16 months. There was a stipulated factual basis for the plea. At the sentencing hearing on February 28, 2022, Swit t initially attempted to withdraw his plea , but after discussion, he withdrew his request and agreed to be
sentenced . After granting the Romero motion, the court sentenced Switt to the agreed

upon term of 16 months and imposed a $300 restitution fine purs uant to section 1202.4, subdivision (b); an additional fine of $300 which was stayed pursuant to section 1202.45; $40 in court security fees under section 1465.8; and $30 in criminal conviction assessments pursuant to Government Code section 70373. Becaus e Switt was already incarcerated, he was not entitled to any custody credits.

1 All statutory references are to the Penal Code unless otherwise stated

.3

.

Switt timely filed a notice of appeal on May 2, 2022, and requested a Certificate of Probable Cause based on his desire to withdraw his plea, which the court granted.
STATEMENT OF FACTS The complaint alleges that on or about April 29, 2020, Switt possessed a sharp instrument while he was confined in a penal institution. During the sentencing hearing on February 28, 2020, Switt stated that the report of the incident was false, because he never had a knife in his possession, as shown in a video of the incident.
APPELLATE COURT REVIEW Switt’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to re view the record independently. ( People v. Wende (1979) 25 Cal.3d 436 ( Wende ) .) The opening brief also includes the declaration of appellate counsel indicating Switt was advised he could file his own brief with this court. By letter on August 23 , 2022, w e invited Switt to submit additional briefing. To date, he has not done so. Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Switt

. DISPOSITION The judgment is affirmed.