Filed 1/8/20 P. v. Ellawendy CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ABDEL FATAH ELLAWENDY,

Defendant and Appellant.

H046986

(Monterey County

Super. Ct. No. 18CR007432)
In April 2019, defendant Abdel Fatah Ellawendy pleaded no contest to assault with a deadly weapon other than a firearm, a felony (Pen. Code, § 245, subd. (a)(1)). On May 15, 2019, the court imposed a two-year prison sentence.

Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant on his own behalf filed a brief in response on October 28, 2019.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the entire record. Following the California Supreme Court’s direction, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” (Kelly, supra, at p. 110.)

I. FACTUAL BACKGROUND

On July 22, 2018, Pacific Grove police officers responded to a call concerning an assault by a suspect with a vehicle. The alleged victim of the assault, Jane Doe, reported to the officers that her ex-boyfriend, defendant, had been stalking her for some time. Doe stated that she had been staying in Carmel Valley with her fiancé because she was concerned about her safety, and she had gone to Pacific Grove to her home to pack for a trip.

Doe told the officers that she had observed defendant driving in the area where she lived; when he saw her, he made a U-turn and followed her. Doe stated that she passed by her home and proceeded toward the police department. Defendant followed her so closely in his car that he nearly collided with her. Doe told the officers that defendant passed her and then slammed on the brakes, attempting to force her to stop. Doe swerved into the opposite lane to avoid colliding with him. She said defendant repeated this maneuver (i.e., passing her and then slamming on his brakes) several times, before eventually giving her the middle finger and driving off. Doe told the officers that defendant had driven by her home before he had left the area.

Officers conducted a check of the area, located defendant, and conducted a traffic stop. After officers explained why they were stopping him, defendant stated that he worked as an Uber driver, had picked up a passenger nearby, and had then seen Doe’s vehicle, “but, ‘didn’t think much of it.’ ” He denied having made contact with Doe other than seeing her at an intersection. Defendant initially told officers he did not know where Doe lived, but later admitted he did. He told officers “that Doe had a history of making ‘fraudulent accusations’ against him and stated he believed she was trying to get him in trouble with the police. Defendant was released.

After stopping defendant, police again spoke to Doe, who provided video footage from security cameras at her home showing defendant driving by her home at the time of the incident. Police also determined from a records search that there had been 14 prior police reports involving Doe and defendant. After officers’ efforts to contact defendant further were unsuccessful because phone numbers he had provided to them were no longer in service, they referred the matter to the District Attorney with a recommendation that stalking charges be filed against defendant.

On August 4, 2018, the police were advised that defendant had been previously placed on the No-Fly List and that the FBI had received notification that defendant had bought a one-way ticket to Egypt scheduled for departure on the morning of August 4. After consultation with the District Attorney’s Office, police officers arrested defendant at his home.

II. PROCEDURAL BACKGROUND

Defendant was charged by a five-count felony complaint on August 7, 2018, with stalking (§ 646.9, subd. (a); count 1), assault with a deadly weapon, a vehicle (§ 245, subd. (a)(1); counts 2 & 3), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 4 & 5). The complaint included special allegations that in the commission of counts 4 and 5, defendant personally used a deadly weapon (§ 12022, subd. (b)(1)). After a preliminary hearing on November 9, 2018, the court found sufficient cause to believe that defendant had committed the charged offenses, and it held defendant to answer to the charges in counts 1 through 5, and the additional offense of dissuading a witness (§ 136.1, subd. (a)). An information was filed on November 26, 2018, alleging the same five counts and the special allegations previously alleged in the complaint, and the added charge of dissuading a witness from testifying, a felony (§ 136.1, subd. (a)(1).

On April 5, 2019, defendant, pursuant to a negotiated plea agreement, pleaded no contest to count 2, assault with a deadly weapon (§ 245, subd. (a)(1)) based upon the understanding that that he would be sentenced to no more than two years in prison. The court confirmed that defendant signed the waiver of rights and plea form filed with the court, and that, before doing so, he had discussed with his attorney the charges, possible defenses thereto, his constitutional rights, and the consequences of changing his plea. The court inquired of defendant as to whether he understood that by entering of plea of guilty or no contest, he would be giving up his constitutional right to a speedy and public trial by court or jury, the right to confront witnesses, the right to present evidence and to compel witnesses to testify on his behalf, and the right to remain silent. The court confirmed further that by entering of plea of guilty or no contest, defendant would be subject to a restitution fine, would be waiving his right to appeal or file a writ, and that because the offense was a strike offense, if he were convicted of a felony in the future, his prior strike conviction would result in the doubling of the sentence for the conviction of the later offense. Defendant entered a plea of no contest to count 2. The court found a factual basis for the plea, and it found further that defendant knowingly, intelligently, and voluntarily waived his rights in entering the no contest plea.

On May 15, 2019, after hearing argument and statements from the victim and her husband, the court denied defendant’s request for probation and imposed a prison sentence on count 2 at the lower term of two years. The court granted defendant 569 days of custody credits and imposed fines and assessments, including a restitution fine of $300. It also issued a 10-year criminal protective order pursuant to section 136.2, subdivision (a)(1). And the court dismissed or struck all remaining counts or special allegations pursuant to section 1385. The court set a further hearing on the victim’s claim for restitution.

Defendant filed a timely notice of appeal, indicating the appeal was based upon “the sentence or other matters occurring after the plea that do not affect the validity of the plea.”

III. DISCUSSION

In the brief filed by defendant on his own behalf after his counsel’s submission of a brief that raised no issue on appeal, he makes a number of assertions. He states, inter alia, that (1) his trial attorney was incompetent and unprepared; (2) his trial attorney never informed defendant about the possibility of receiving prison time in connection with his no contest plea, and his attorney had informed defendant that he would receive probation; (3) his trial attorney disregarded defendant’s instruction to withdraw his plea; (4) the prior police reports involving Doe and defendant described in the probation officer’s report involved reports by both parties; (5) when defendant changed his plea and the trial court indicated that the offense to which he was pleading no contest was a strike offense and told him he was waiving his appeal and writ rights, he did not understand, the matters had not been explained to him by his trial counsel, and his counsel directed him to answer “Yes,” indicating to the court he did understand; (6) he was coerced into entering the no contest plea to count 2 even though he had not committed the crime; (7) as he had stated in an April 11, 2019 letter to the trial judge, he had entered the no contest plea because he “ ‘was under the impression that [he would] be facing a lifetime in prison if [he chose] to exercise [his] rights to a jury trial which [he] was advised that [he would] most likely to lose because of [his] race and how racist and feminist the community is . . .’ ”; (8) Doe had lied to the court in the statement she gave at the sentencing hearing; (9) defendant had been systematically harassed and discriminated against by law enforcement; and (10) his civil rights were violated on multiple occasions.

Having carefully reviewed the entire record and having considered the arguments raised in the brief filed by defendant, we conclude that there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)

IV. DISPOSITION

The judgment is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

PREMO, ACTING P.J.

MIHARA, J.

People v. Ellawendy

H046986