California Court of Appeal Oct 3, 2016 No. E066382Unpublished
Filed 10/3/16 P. v. Rosier 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E066382
v. (Super.Ct.No. RIF1500914)
BRIAN KENNETH ROSIER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge.
Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant, Brian Kenneth Rosier, plead guilty to possession of
marijuana while incarcerated (count 1; Pen. Code, § 4573.8) and deterring and preventing
an officer from performing his duties by means of threats and violence (count 3; Pen.
Code, § 69). Defendant additionally admitted he suffered three prior strike convictions
and two prior prison terms. Pursuant to his plea agreement, the court sentenced
defendant to an aggregate term of imprisonment of eight years.
After both counsel and defendant filed notices of appeal, this court appointed
had suffered four prior prison terms (Pen. Code, § 667.5, subd. (b)).
Defendant entered into a plea agreement in which he pled guilty to counts 1 and 3,
admitted he had suffered two prior prison terms, and admitted all three prior strike
convictions. In return, defendant received an aggregate term of incarceration of eight
years and the additional charges and allegations were dismissed.
As part of his plea agreement, defendant initialed provisions reflecting he had
been advised of his rights, understood the consequences of the plea, and was under no
threats or pressure to enter into the plea. Defendant initialed a provision indicating he
had had adequate time to discuss the matter with his attorney. Defendant waived his right
to appeal. Defendant initialed the provision providing a factual basis for the plea in that
he had done the things stated in the charges he admitted. Defendnt signed the agreement
indicating: “I have read and understand this entire document. I waive and give up all of
the rights that I have initialed. I accept this Plea Agreement.” Defendant’s attorney
signed the agreement reflecting he was satisfied defendant understood his constitutional
rights, had an adequate time to discuss the case, and understood the consequences of his
plea.
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Before entering his plea, the court asked defendant if he understood the charges
against him; defendant responded that he did. The court explained the plea agreement to
defendant; defendant indicated he understood the agreement. The court asked if
defendant had read and understood everything in the agreement; defendant responded he
had and did. The court asked if defendant had any questions; defendant responded he did
not. The court asked defendant if any additional promises had been made or whether he
was under any threat to enter the plea; defendant responded “No.”
The court asked if defendant wanted additional time to speak with his attorney;
defendant responded that he did not. The court asked if defendant was under the
influence of any drugs which would affect his ability to think rationally; defendant
responded that he was not.
The court took defendant’s plea. The parties stipulated that the factual basis for
the plea could be taken from the felony complaint. The court asked defendant if it was
true he had done the things alleged; defendant responded that it was. The court found
defendant understood the charges against him, the consequences of the plea, entered into
the plea freely and voluntarily, and that defendant had knowingly and intelligently
waived his constitutional rights.
At the next hearing, defense counsel indicated he had received a letter from
defendant asking to withdraw the plea. Defense counsel indicated the letter would
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require a Marsden1 hearing. Counsel stated it was not clear upon what basis defendant
was requesting to withdraw his plea.
During the Marsden hearing, defendant stated that when he entered the plea he
was taking psychiatric medications for anxiety because he felt threatened by the People
due to the amount of time he was facing if he were found guilty on all the counts and
allegations in the complaint. Defendant said he was not dissatisfied with his
representation. The court stated that the motion to withdraw the plea must be done by
noticed motion to give the People the opportunity to respond. The court denied the
Marsden motion. The court continued the matter to allow counsel to investigate any
bases for filing a motion to withdraw the plea.
At the next hearing, the court sentenced defendant. No mention was made of the
motion to withdraw the plea. Defense counsel filed a notice of appeal requesting a
certificate of probable cause as defendant “has discovered a witness who may be able to
provide new information or evidence about his case.” The court denied the request,
noting that defendant had waived his right to appeal as part of his negotiated plea.
II. DISCUSSION
We offered 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 independently reviewed the record for potential error and find no arguable issues.
1 People v. Marsden (1970) 2 Cal.3d 118.
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III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
SLOUGH J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence after finding no arguable issues upon independent review of the record pursuant to People v. Wende.
Issues
Whether defendant’s waiver of his right to appeal was valid
Whether the court abused its discretion by denying defendant’s request for a certificate of probable cause
Whether defendant’s guilty plea was constitutionally valid
Whether there was a sufficient factual basis for the plea
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.”