People v. Roberts CA3

Filed 7/13/15 P. v. Roberts CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada) ----

THE PEOPLE, C075935

Plaintiff and Respondent, (Super. Ct. No. F13000243A)

v.

MICHAEL WAYNE ROBERTS,

Defendant and Appellant.

Defendant Michael Wayne Roberts appeals from a postjudgment order denying his motion to withdraw his plea. Defendant contends the trial court abused its discretion in denying his motion. We disagree and affirm the order.

FACTS AND PROCEEDINGS

At the conclusion of his preliminary hearing on September 24, 2013, defendant was held to answer. Defendant waived the statutory time limit for arraignment and agreed to be arraigned on October 11, 2013. He did not ask to be released from custody.

1

On October 11, 2013, defendant entered a negotiated plea of no contest to first degree burglary in exchange for a stipulated sentence of two years in state prison. Defendant did not ask to be released from custody either prior to entering his plea or at the plea hearing. He did not request to be sentenced immediately and waived his right to be sentenced in 20 days. At the sentencing hearing on November 18, 2013, defendant personally sought a “two-day” pass to attend his mother’s rosary and funeral. The court denied defendant’s request for a “pass,” stating that defendant was “a convicted felon who is going to prison.” Defendant thereafter personally apologized for his conduct, stating, “I would like to apologize for what I did to the victims as well and I have accepted my responsibility and my participation in what I did.” The court imposed the stipulated sentence and remanded defendant to the custody of the sheriff for transport to the Department of Corrections and Rehabilitation. On December 5, 2013, defense counsel sent a memo to the court, asking it to appoint conflict counsel to investigate whether there were grounds to withdraw defendant’s plea. On December 9, 2013, the court appointed conflict counsel to evaluate a motion to withdraw defendant’s plea. On January 23, 2014, defendant moved to vacate the judgment, claiming he entered his plea based on mistake and extreme emotional distress. Defendant claimed that on September 20, 2013, while he was in custody at the county jail, his sister informed him that his brother had assaulted his mother, that his mother was dying, and that a priest was giving his mother her “ ‘last rites.’ ” Defendant requested a “pass” from the jail to visit his dying mother. Defendant wanted to leave after court on September 24, 2013 (the preliminary hearing), and planned to return one to two weeks after the funeral. Defendant claimed that on some unspecified date, jail personnel responded, giving defendant a note that stated, “Due to the fact you are not yet sentenced you will need to