People v. Petitta CA6

Filed 8/14/14 P. v. Petitta CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040178 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. B1154589)

v.

LAWRENCE JOSEPH PETITTA,

Defendant and Appellant.

Defendant Lawrence Joseph Petitta was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)).1 It was also alleged that he had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two five-year enhancements pursuant to section 667, subdivision (a). Prior to trial, the trial court suspended criminal proceedings and ordered psychiatric evaluation as to defendant’s competency. Based on three psychiatric reports, the trial court found that defendant was competent and reinstated criminal proceedings. At the change of plea hearing, defendant verified to the trial court that he had initialed and executed an advisement of rights, waiver, and plea form pursuant to Boykin/Tahl.2 Defendant also stated that he understood the form, had no questions

1 All further statutory references are to the Penal Code. 2 Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).

regarding it, and understood the consequences of his plea. The parties stipulated that the police report constituted a factual basis for the plea.3 Defendant pleaded guilty to the charged offense and admitted the allegations. Defendant submitted a request for the trial court to exercise its discretion and strike the prior strike allegations under section 1385. Following a hearing, the trial court struck both prior strike allegations in the interest of justice. The trial court then sentenced defendant to the middle term of three years for the second degree robbery and five years for each of the prior convictions under section 667, subdivision (a) for a total term of 13 years. Defendant filed a timely notice of appeal. Appointed counsel initially filed an opening brief in which she argued that defendant had been deprived of the effective assistance of counsel. However, she subsequently wrote to defendant and recommended that he abandon his appeal, because he risked exposure to a longer sentence than he was currently serving. Moreover, in discussing the matter with trial counsel, she learned that the issue was not in fact a viable legal issue. Appointed counsel then brought a motion to strike the opening brief and substitute a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), which was granted. Defendant was notified of his right to submit written argument on his own behalf. He has filed a supplemental brief. Defendant raises issues relating to the “Three Strikes” law. He contends: (1) “the retroactive judicial enlargement of prior convictions by the ‘three strike law’ is a violation of constitutional protection found in the ‘ex-post facto’ clause of the United States Constitution”; (2) the Three Strikes law is flawed with “scribner errors and a plea