Filed 1/6/20 P. v. Dutson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

DEVIN MICHAEL DUTSON,

Defendant and Appellant.

E072811

(Super.Ct.No. FWV19000193)

OPINION

APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed.

Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Devin Michael Dutson was charged with one count of possession of a controlled substance or paraphernalia in a custodial facility. (Pen. Code, § 4573.6, subd. (a).) Pursuant to a plea agreement, he pled no contest to the charge in exchange for a three-year term in state prison, to be served concurrently with the sentences in two other cases. The trial court sentenced defendant to state prison for the agreed-upon term of three years, with credit for time served of 119 actual days.

Defendant filed a notice of appeal and request for a certificate of probable cause, which the court granted. We affirm.

PROCEDURAL BACKGROUND

On January 18, 2019, a felony complaint was filed charging defendant with one count of possession of a controlled substance or paraphernalia in a custodial facility. (§ 4573.6, subd. (a).) He pled not guilty.

On March 4, 2019, defendant entered a plea agreement and withdrew his plea of not guilty. Before accepting the plea, the court questioned him. Defendant confirmed that he went over the agreement with counsel, understood the agreement, understood the constitutional rights he was waiving, understood the possible immigration consequences of his plea, and understood that he would be sentenced to three years and receive 119 days of actual credit. He confirmed that there were no other promises or representations made to him to induce him to enter a plea. His counsel agreed that she had adequate time to discuss the agreement with him, and that he understood everything. Defendant pled no contest, and the parties stipulated there was a factual basis for the plea. The court found that defendant knowingly, intelligently, and voluntarily entered the plea agreement. It then sentenced him to the agreed-upon term of three years in state prison.

On April 18, 2019, defendant filed a motion to withdraw his plea, alleging that he was not eager to enter his plea, and that he was not represented by his assigned public defender at the plea hearing, but rather by her colleague. He also objected to any terms being written on his plea form out of his presence. The court held a hearing on the motion. Defense counsel explained that defendant was “unhappy that somebody wrote 119 days of actual credit” on his plea form, which he did not see when he initialed it. Defense counsel pointed out to defendant that the court advised him of the 119 days of actual credit, but defendant was adamant about wanting to withdraw his plea. The court denied the motion.

On May 6, 2019, defendant filed a notice of appeal indicating that he was challenging the validity of the plea. In his request for a certificate of probable cause, he listed the grounds for his appeal as his objection to his counsel’s colleague standing in for her at the plea hearing and his objection to language that was added to his written plea agreement, after he agreed to it. He also stated that he “[did] not agree with the plea.” The court granted his request for certificate of probable cause.

DISCUSSION

Defendant appealed and, upon his request, 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, a summary of the facts, and identifying two potential arguable issues: (1) whether defendant’s plea was knowing and voluntary; and (2) whether the court erred in denying his motion to withdraw his plea. Counsel has also requested this court to undertake a review of the entire record.

We offered the 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 have conducted an independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.