People v. Craig CA1/3

Filed 6/10/14 P. v. Craig CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A140984 v. ROBERT FRED CRAIG, (Napa County Super. Ct. No. CR165252) Defendant and Appellant.

Defendant Robert Fred Craig appeals the prison sentence imposed after he pleaded no contest to one count of second degree robbery and one count of evading a police officer. His attorney has asked this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738, 744; People v. Wende (1979) 25 Cal.3d 436.) Defendant has submitted a supplemental letter brief asserting that he received ineffective assistance of counsel prior to the entry of his plea and that the plea was entered under duress. For the reasons explained below, the arguments raised in defendant’s supplemental briefs are not cognizable on appeal. Based on our independent review of the record, we find no issue warranting further briefing and therefore shall affirm the judgment. 1

1 In his supplemental brief, defendant also sought to have his appointed appellate counsel replaced. On May 14, 2014, defendant wrote a second letter to the court seeking an update on the status of his case and his request for new appellate counsel. We have reviewed the record and determined independently that there is no basis for any attorney to file anything other than a Wende brief. We therefore deny defendant’s request to discharge his appointed counsel.

1

Factual and Procedural History According to the probation report, defendant, who was despondent over the loss of his job and the impending loss of his home, drank a 12-pack of malt liquor and used a half-ounce of crack cocaine before deciding to rob a Walmart store. At 4:30 a.m. on March 9, 2013, he went to the store, took a television and, according to the police report, simulated a gun in order to get past security. A witness reported the license number of the truck in which defendant fled and thereafter, the probation report relates, “[a] truck matching the description of the responsible party was located. As the officer attempted to pull the truck over, the driver of the truck, later identified as the defendant, put both hands up above his head and continued to drive. He went into a senior citizen trailer park and drove at a high rate of speed. As he was driving, he rear-ended another officer’s patrol car and drove onto a lawn where he collided with a wooden lattice. [¶] As four officers approached the vehicle and ordered the defendant to put his hands up, he refused. He was taken out of the vehicle and once on the ground, placed both arms under his chest near his waist band. Fearing he might have a firearm, he was ordered to give the officer his hands. The defendant did not comply; therefore he was punched numerous times. The defendant continued to resist by keeping his arms underneath him. The defendant was ultimately tased. Once the defendant was placed in handcuffs, he complained he could not breathe and he was dead. Medical personnel responded and the defendant was taken to the . . . hospital.” Defendant plead no contest to second degree robbery (Pen. Code, § 211)2 and to evading an officer (Veh. Code, § 2800.2). He also admitted one prior strike conviction under section 667, subdivisions (b) through (i). Pursuant to a plea bargain, other charges and enhancements were dismissed. The plea was open to the court with an expectation that the court would consider striking the strike prior. The court declined to strike the prior and sentenced defendant to seven years four months in state prison. The court imposed the midterm of three years for the robbery,