Filed 10/30/20 P. v. Welch 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074740
v. (Super.Ct.No. FVA03949)
ALBERT ALEXANDER WELCH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Albert Alexander Welch, in pro. per.; Forest M. Wilkerson, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 INTRODUCTION
In 1995, defendant and appellant Albert Alexander Welch was charged by
information with second degree robbery. (Pen. Code,1 § 211, count 1.) The information
alleged that a principal was armed with a firearm in the commission of the robbery within
the meaning of former section 12022, subdivision (a)(1). It also alleged that defendant
had two prior strike convictions based on two 1993 convictions for robbery. A jury
found him guilty of count 1 and found the firearm allegation true. In a bifurcated
hearing, a trial court found the prior strike allegations true. On October 30, 1995, the
court sentenced him to 25 years to life on count 1, plus one year on the firearm
enhancement.
On January 16, 2020, defendant filed, in propria persona, a “Motion for
Modification of Sentence Based on Newly Enacted Penal Code Section 1016.8,
Subdivision (a)(4).” The court denied the request.
Defendant filed a timely notice of appeal, in propria persona. We affirm.
PROCEDURAL BACKGROUND
In 1995, the trial court sentenced defendant to 25 years to life on count 1, plus one
year on the firearm enhancement. On January 16, 2020, he filed an in propria persona
request for modification of his sentence, pursuant to section 1016.8 (Stats. 2019, ch. 586,
§ 1, eff. Jan. 1, 2020). He based the request on the portion of the new law which
provides, “A plea bargain that requires a defendant to generally waive unknown future
1 All further statutory references will be to the Penal Code unless otherwise noted. 2 benefits of legislative enactments, initiatives, appellate decisions, or other changes in the
law that may occur after the date of the plea is not knowing and intelligent.” (§ 1016.8,
subd. (a)(4).) He argued that he was entitled to relief because section 1016.8 no longer
permitted “harsh punishment” using prior plea bargains. He was not told of the direct
consequences of his prior pleas, he did not know of the consequences, and he would not
have pled if had known the consequences. He further contended the three strikes law
applied retroactively to individuals whose prior plea bargain convictions occurred before
the passage of the three strikes law, and those individuals were “effectively precluded
from considering these future consequences when weighing the bargain offered.” Thus,
the pleas were not knowing and intelligent. Defendant asked the court to vacate his prior
plea convictions that were used as strikes and resentence him to a base term of five years,
plus 10 years for the two prior felony convictions.
The court read and considered defendant’s request for modification and denied the
request.
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 and one potential arguable issue: whether section 1016.8, subdivision (a)(4), or
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin), invalidate the use of defendant’s prior
strikes, which were taken before the passage of the three strikes law. Counsel has also
requested this court to undertake a review of the entire record.
3 While we understand that the appellate review procedures under People v. Wende,
supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, in which we review
the record ourselves to determine whether there are any arguable issues, generally apply
“only to a defendant’s first appeal as of right” (People v. Thurman (2007) 157
Cal.App.4th 36, 45), we also recognize that we still retain discretion to conduct a
Wende/Anders review in the interests of justice. (See generally Conservatorship of Ben
C. (2007) 40 Cal.4th 529, 544, fn. 7 [“The court may, of course, find it appropriate to
retain the appeal.”]; see also People v. Flores (2020) 54 Cal.App.5th 266, 269 [when
appointed counsel files a Wende brief in an appeal from denial of a section 1170.95
petition, appellate court is not required to independently review the entire record, but can
do so in the interests of justice].) In this case, we exercise that discretion to conduct an
independent review of the record, where counsel has already undertaken to comply with
Wende requirements, defendant has been afforded an opportunity to file supplemental
briefing and has done so, and defendant is serving a life sentence for a non-homicide
offense.
Having undertaken an examination of the record, we find no arguable issues.
However, defendant has filed a supplemental brief, and we are required to evaluate
his arguments and issue a written opinion that disposes of the trial court’s order on the
merits. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040.) He filed a brief, in propria
persona, which contains long claims that are unintelligible and unsupported by legal or
factual analysis. For example, he claims that “the trial court erred in refusing to consider
the said motion to strike the prior conviction(s), by plea to label crime(s),” and that “had
4 the trial court complied with the Boykin/Tahl case law standards, the trial court
compliance with the law would have prohibited and increase status enhancement
application or alternative sentencing scheme using only label crime.” He further asserts
the court “would have determined that the prior plea bargain conviction(s) were
unconstitutional, because the plea in those prior case(s) were taken in violation of
Boykin/Tahl case law standards, when the court record failed to establish: (1) Penal Code
§1200 the prior or status enhancement was not cited in the allocution pleading; (2) the
status character conduct was not articulated orally on the court records under the case law
standard Prater at 701; see [Citations]. The allocution arraignment for judgment.” He
subsequently contends “the judge in accepting the original plea, pleas [sic] did not inquire
of appellant as to his knowledge and willingness to give up his constitutional right to
status increase penalty.”
To the extent defendant is possibly claiming he should have been advised, under
Boykin, supra, 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Tahl), that he was
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Filed 10/30/20 P. v. Welch 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, E074740
v. (Super.Ct.No. FVA03949)
ALBERT ALEXANDER WELCH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Albert Alexander Welch, in pro. per.; Forest M. Wilkerson, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 INTRODUCTION
In 1995, defendant and appellant Albert Alexander Welch was charged by
information with second degree robbery. (Pen. Code,1 § 211, count 1.) The information
alleged that a principal was armed with a firearm in the commission of the robbery within
the meaning of former section 12022, subdivision (a)(1). It also alleged that defendant
had two prior strike convictions based on two 1993 convictions for robbery. A jury
found him guilty of count 1 and found the firearm allegation true. In a bifurcated
hearing, a trial court found the prior strike allegations true. On October 30, 1995, the
court sentenced him to 25 years to life on count 1, plus one year on the firearm
enhancement.
On January 16, 2020, defendant filed, in propria persona, a “Motion for
Modification of Sentence Based on Newly Enacted Penal Code Section 1016.8,
Subdivision (a)(4).” The court denied the request.
Defendant filed a timely notice of appeal, in propria persona. We affirm.
PROCEDURAL BACKGROUND
In 1995, the trial court sentenced defendant to 25 years to life on count 1, plus one
year on the firearm enhancement. On January 16, 2020, he filed an in propria persona
request for modification of his sentence, pursuant to section 1016.8 (Stats. 2019, ch. 586,
§ 1, eff. Jan. 1, 2020). He based the request on the portion of the new law which
provides, “A plea bargain that requires a defendant to generally waive unknown future
1 All further statutory references will be to the Penal Code unless otherwise noted. 2 benefits of legislative enactments, initiatives, appellate decisions, or other changes in the
law that may occur after the date of the plea is not knowing and intelligent.” (§ 1016.8,
subd. (a)(4).) He argued that he was entitled to relief because section 1016.8 no longer
permitted “harsh punishment” using prior plea bargains. He was not told of the direct
consequences of his prior pleas, he did not know of the consequences, and he would not
have pled if had known the consequences. He further contended the three strikes law
applied retroactively to individuals whose prior plea bargain convictions occurred before
the passage of the three strikes law, and those individuals were “effectively precluded
from considering these future consequences when weighing the bargain offered.” Thus,
the pleas were not knowing and intelligent. Defendant asked the court to vacate his prior
plea convictions that were used as strikes and resentence him to a base term of five years,
plus 10 years for the two prior felony convictions.
The court read and considered defendant’s request for modification and denied the
request.
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 and one potential arguable issue: whether section 1016.8, subdivision (a)(4), or
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin), invalidate the use of defendant’s prior
strikes, which were taken before the passage of the three strikes law. Counsel has also
requested this court to undertake a review of the entire record.
3 While we understand that the appellate review procedures under People v. Wende,
supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, in which we review
the record ourselves to determine whether there are any arguable issues, generally apply
“only to a defendant’s first appeal as of right” (People v. Thurman (2007) 157
Cal.App.4th 36, 45), we also recognize that we still retain discretion to conduct a
Wende/Anders review in the interests of justice. (See generally Conservatorship of Ben
C. (2007) 40 Cal.4th 529, 544, fn. 7 [“The court may, of course, find it appropriate to
retain the appeal.”]; see also People v. Flores (2020) 54 Cal.App.5th 266, 269 [when
appointed counsel files a Wende brief in an appeal from denial of a section 1170.95
petition, appellate court is not required to independently review the entire record, but can
do so in the interests of justice].) In this case, we exercise that discretion to conduct an
independent review of the record, where counsel has already undertaken to comply with
Wende requirements, defendant has been afforded an opportunity to file supplemental
briefing and has done so, and defendant is serving a life sentence for a non-homicide
offense.
Having undertaken an examination of the record, we find no arguable issues.
However, defendant has filed a supplemental brief, and we are required to evaluate
his arguments and issue a written opinion that disposes of the trial court’s order on the
merits. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040.) He filed a brief, in propria
persona, which contains long claims that are unintelligible and unsupported by legal or
factual analysis. For example, he claims that “the trial court erred in refusing to consider
the said motion to strike the prior conviction(s), by plea to label crime(s),” and that “had
4 the trial court complied with the Boykin/Tahl case law standards, the trial court
compliance with the law would have prohibited and increase status enhancement
application or alternative sentencing scheme using only label crime.” He further asserts
the court “would have determined that the prior plea bargain conviction(s) were
unconstitutional, because the plea in those prior case(s) were taken in violation of
Boykin/Tahl case law standards, when the court record failed to establish: (1) Penal Code
§1200 the prior or status enhancement was not cited in the allocution pleading; (2) the
status character conduct was not articulated orally on the court records under the case law
standard Prater at 701; see [Citations]. The allocution arraignment for judgment.” He
subsequently contends “the judge in accepting the original plea, pleas [sic] did not inquire
of appellant as to his knowledge and willingness to give up his constitutional right to
status increase penalty.”
To the extent defendant is possibly claiming he should have been advised, under
Boykin, supra, 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Tahl), that he was
waiving his constitutional right against having a sentence enhanced because of his pleas,
such claim has no merit. Pursuant to Boykin and Tahl, a court must inform a defendant of
three constitutional rights—the privilege against compulsory self-incrimination, the right
to trial by jury, and the right to confront one’s accusers—and solicit a personal waiver of
each, when taking a guilty plea. (People v. Cross (2015) 61 Cal.4th 164, 170.) There is
no requirement to ask a defendant if he is willing to “give up his constitutional right to
status increase penalty,” as defendant claims. We further note that the Legislature
amended section 667 to add subdivisions (b) through (i) in 1994, effective March 7,
5 1994, and the law permits the use of pre-March 7, 1994 convictions as strikes. (People v.
Sipe (1995) 36 Cal.App.4th 468, 475-476.) Moreover, as the court in Sipe explained,
“[b]efore March 7, 1994, no sentencing judge knew a felony conviction might be used in
the future as a ‘strike,’ so no judge advised a defendant pleading guilty to a serious or
violent felony of that consequence. [¶] Future use of a current conviction is not a direct
consequence of that conviction, so no such advisement is necessary.” (Id. at p. 479.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.