Filed 9/12/23 P. v. Mojica CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085044
Plaintiff and Respondent,
(Super. Ct. No. F22900450)
v.
MANUEL MOJICA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Meehan, J.
Defendant Manuel Mojica pled no contest to attempted second degree robbery and
admitted that he personally discharged a firearm in the commission of the offense and
had suffered a prior “strike” conviction within the meaning of the “Three Strikes” law
(Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d))1 after the trial court denied
his pretrial evidentiary motion and motion to quash and traverse search warrants.
Defendant’s appellate counsel filed a brief that summarizes the facts with citations
to the record, raises no issues, and asks this court to independently review the record.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant’s counsel has also identified
four issues that defendant would like the court to consider in reviewing the record:
(1) whether the trial court erred in denying his motion to suppress the photo lineup (if not
forfeited); (2) whether the court erred in denying defendant’s motion to quash and
traverse warrants (if not forfeited); if the first two claims are forfeited, (3) whether
defendant’s trial counsel was ineffective for failing to preserve the issues; and
(4) whether the court abused its discretion or breached the plea agreement by
withdrawing its approval for the plea agreement. We have conducted an independent
review. Finding that the issues defendant identified have no merit and no reasonably
arguable legal or factual issues exist, we affirm.
PROCEDURAL SUMMARY
On January 21, 2022, the Fresno County District Attorney filed a complaint
charging defendant with attempted second degree robbery (§§ 211, 664, subd. (a);
count 1), two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 2
& 4), and two counts of possession of ammunition by a prohibited person (§ 30305, subd.
(a)(1); counts 3 & 5). As to count 1, the complaint further alleged that a principal in the
offense personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). As to all
1 All further statutory references are to the Penal Code except as otherwise noted.
2.
counts, the complaint alleged that defendant had suffered a prior strike conviction
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
On August 4, 2022, defendant filed a motion to traverse search warrants and
suppress the evidence seized pursuant to those warrants. On the same date, defendant
also filed a motion to suppress evidence of a purportedly suggestive photo lineup
identification. He further moved in the same motion to permit defendant to be concealed
behind a partition at the preliminary hearing until the eyewitnesses were examined to
avoid the witnesses’ description of the suspect being tainted by their viewing of
defendant pursuant to People v. Harmon (1989) 215 Cal.App.3d 552, and then to be
identified only as part of a lineup pursuant to Evans v. Superior Court (1974) 11 Cal.3d
617.
On August 9, 2022, the People filed oppositions to both motions.
On August 26, 2022, the trial court denied both of defendant’s motions in full. On
the same date, after all evidence was presented at the preliminary hearing, but before
defendant was held to answer, defendant pled no contest to count 1, admitted personally
discharging a firearm in the commission of count 1, and admitted the prior strike
conviction allegation pursuant to a negotiated plea agreement. In exchange for his plea,
counts 2 through 5 were dismissed on the People’s motion. The court indicated it would
impose an eight-year term of imprisonment (the middle term of two years on count 1,
doubled due to the prior strike conviction, plus a four-year firearm enhancement).
On September 16, 2022, the trial court informed defendant that it would not
impose the indicated sentence because the indicated sentence, initially expressed before
the preliminary hearing, was given without an understanding of the discharge of a firearm
allegation.
On September 30, 2022, the trial court indicated a 19-year term of imprisonment
(the middle term of two years on count 1, doubled due to the prior strike conviction, plus
a 10-year firearm enhancement, plus a five-year prior serious felony conviction
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enhancement). Defendant agreed. The court granted the People’s motion to file an
amended complaint. The Fresno County District Attorney then filed a first amended
complaint charging defendant with attempted second degree robbery (§§ 211, 664, subd.
(a); count 1), two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1);
counts 2 & 4), and two counts of possession of ammunition by a prohibited person
(§ 30305, subd. (a)(1); counts 3 & 5). As to count 1, the amended complaint further
alleged that defendant personally used a firearm (§ 12022.53, subd. (b)). As to all counts,
the amended information alleged that defendant had suffered a prior strike conviction
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified as a serious felony
conviction (§ 667, subd. (a)).
On the same date, defendant pled no contest on count 1, admitted the personal use
of a firearm allegation, admitted the prior strike conviction allegation, and admitted the
prior serious felony conviction allegation pursuant to a negotiated plea agreement.
Pursuant to the agreement, the trial court dismissed counts 2 through 5 on the People’s
motion. The court then imposed the indicated sentence of 19 years
On October 3, 2022, defendant filed a notice of appeal. He checked the box
indicating that the “appeal is based on the sentence or other matters occurring after the
plea that do not affect the validity of the plea.”
4.
FACTUAL BASIS2
Preliminary Hearing
On December 4, 2021, a man attempted to rob3 D.H. while he worked at a liquor
store. A man wearing a facemask entered the store, brandished a gun at him, and said,
“ ‘Give me the money.’ ” The interaction lasted approximately two minutes.4
Fresno police officers responded to the liquor store on the same date. D.H.
showed them security camera footage of the incident. D.H. described that his assailant’s
“complexion was white, but [he was] neither white nor black.” D.H. told the officers he
was not sure whether his assailant had tattoos.
On December 28, 2021, Fresno Police Detective Natalia Camarena showed D.H. a
photographic lineup. Carr created the lineup based on his observation of defendant in the
security video.5 From his review of the video, Carr noted that the assailant had
two tattoos—one above his left eyebrow and one on the right side of his neck. Carr
estimated that the photo of defendant had been taken within the previous three years, but
it did not contain a tattoo above defendant’s left eye that he had at the time of his arrest.
The other photos in the lineup were Fresno County booking photos. Along with the
2 The parties stipulated that the trial court could rely on the preliminary hearing
transcript to find a factual basis for defendant’s plea. A portion of our summary of the
facts is therefore drawn from the probation officer’s report. Because defendant also asks
us to consider whether the trial court erred in denying defendant’s motion to traverse the
warrant, we also summarize the evidence presented at that hearing.
3 D.H. testified that he was robbed. We note that nothing was taken by force from
D.H. and the assailants left empty-handed.
4 Fresno Police Detective Nathan Carr testified that the video depicting defendant in
the liquor store was approximately three minutes but the interaction between defendant
and D.H. lasted approximately 20 seconds.
5 Carr was unaware of D.H.’s description of the assailant being white complected
when he created the photo lineup.
5.
photographic lineup, D.H. was read6 an admonishment7 regarding the photographs he
would be shown. D.H. testified that he understood the admonition. D.H. identified
defendant as the person who attempted to rob him in the photographic lineup with the
officers and in the courtroom. D.H. noted that the background of defendant’s photo in
the lineup was different from the other photos, but it played no part in D.H.’s
identification of defendant. Carr also commented that the background of defendant’s
photo was darker than the other photos but the difference was not intentional. D.H.
selected the photo of defendant because he recognized defendant from the photo. D.H.
testified, “[w]ithout a doubt,” defendant was the person who attempted to rob him. D.H.
testified his only uncertainty was whether as to the color of the shirt the assailant was
wearing on the date of the robbery.
Camarena audio recorded the discussion with D.H. during his review of the
December 28, 2021 photographic lineup. D.H. narrowed the assailant down to two men
in the lineup. Camarena asked D.H. if one of the two men stood out more than the other.
D.H. said that he was 90 percent sure that defendant was the assailant. Carr and
6 D.H. did not speak or read English. His cousin who spoke English fluently and
D.H.’s native language and dialect translated the admonition to him.
7 The admonition read in full:
“In a moment, I am going to show you a group of photographs. This group
of photographs may or may not contain a picture of the person who
committed the crime now being investigated. It is as equally important to
exclude innocent persons, as it is to identify a perpetrator. Keep in mind
that hair styles, beards, and moustaches may be easily changed. Also,
photographs may not always depict the true complexion of a person⸻it
may be lighter or darker than shown in the photo. Pay no attention to any
markings or numbers that may appear on the photos or any other
differences in the type or style of the photographs. When you have looked
at all the photos, tell me whether or not you see the person who committed
the crime. This investigation will continue regardless if an identification is
made. Do not tell other witnesses that you have or have not identified
anyone.”
6.
Camarena testified that neither pressured D.H. to select a photo. Camarena testified that
the photo lineup was a blind administration—i.e., that she had no knowledge of the case
or investigation when she provided the lineup to D.H.
Hearing on Motion to Traverse Warrant
On December 4, 2021, Carr was the robbery detective dispatched by the Fresno
Police Department to the robbery at the liquor store in this case. When he arrived at the
liquor store, he was briefed by the night detective and primary officer. He then assisted
those officers in downloading and reviewing the security camera footage from the liquor
store. The surveillance system also recorded audio. He described the robbery as it
appeared in the security camera footage:
“[At] [a]pproximately 5:50 p.m. on … December 4, [2021,]
two subjects are seen walking south … towards the store. They linger in
front of the store for a short time. The first subject enters the store, stays
inside, doesn’t purchase anything, doesn’t do anything, then stands behind
the register where the customers belong. [D.H.] is helping another
customer, and when the register opens, the second subject enters the store.
He is armed with a black semi-automatic handgun in his left hand. He
opens the partition that separates the customer area from the employee area
where the register is. The subject with the guns tells [D.H.] to not move
and give him the money. [D.H.] backs away and slams the register shut.
The subject with the gun backs up and then reaches forward a couple inches
and shoots one time in the direction of [D.H.]. Both subjects flee the store
northbound and are seen leaving about 5:52 p.m.”
D.H. told Carr that the gunman might have previously been a customer and might
have driven a white pickup truck of unknown make and model. A bullet slug was
recovered from a box behind where D.H. was standing. A bullet casing was also
recovered at the scene. Carr later had the bullet casing compared in the National
Integrated Ballistic Network system and received a match related to a negligent discharge
of a firearm call in September 2021 in central Fresno.
Carr described the gunman based on the security camera footage. He was a
Hispanic male, wearing a long-sleeved black shirt, black pants, black sandals, and a black
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COVID mask. His hair was “bushy” and Carr “clearly [saw] a Cincinnati Reds ‘C’ on
the right side of his neck.” Carr also saw what appeared to be a tattoo above his left eye.
On December 27, 2021, Carr discovered another negligent discharge of a firearm
report at an apartment complex in central Fresno on December 22, 2021, roughly half a
mile from the attempted robbery and nearby the prior negligent discharge report. The
reporting party on the second negligent discharge call reported that her brother,
defendant, had accidentally discharged a firearm inside of her apartment. The officers
who responded to the call found blood outside of the apartment, and a bullet hole in the
bedroom, and may have found a bullet slug. Carr conducted a records check on
defendant and saw that defendant’s appearance matched the suspect in the attempted
robbery—the hair, large “C” tattoo on the neck, and tattoo above the left eye all appeared
to match.
Carr prepared a photographic lineup and D.H. identified defendant as his assailant.
Carr then authored and obtained a search warrant for defendant’s social media data. Carr
reviewed defendant’s social media messages. In those messages, defendant admitted
having accidentally discharged a firearm on December 22, 2021, but Carr found no
messages regarding the attempted robbery. Carr next authored and obtained a “ping
warrant” that would provide him access to the location of defendant’s cell phone.8 Using
that information, other officers arrested defendant. When defendant was arrested, one of
the other detectives spoke to defendant’s girlfriend who told the detective that the other
suspect in the attempted robbery was probably defendant’s cousin who went by the name
of “Much.”
Carr next authored and obtained a warrant to search the phone defendant had in his
possession at the time of his arrest. Carr found a contact in defendant’s phone labeled
8 Carr explained that he believed the cell phone number belonged to defendant
because defendant had sent a social media message telling another person that he could
be contacted at that phone number.
8.
“Three Much” and reviewed text messages from the date of the attempted robbery and
the following days. Carr described that “[t]he two appeared panicked, like something bad
had happened, and [defendant] had responded to Three Much [approximately three hours
after the attempted robbery], saying that ‘I hope they did not see my neck tattoos.’ ”
Three Much was also arrested in relation to this case.9 In a shoebox in his
bedroom, officers found a handgun. A ballistics test was performed and the firearm was
a match to the shell casings from the attempted robbery and the first negligent discharge
report.
Carr also reviewed jail calls in relation to this case. He found a call between
Three Much and Three Much’s brother on December 5, 2021. In that call, Three Much
told his brother “that he and C Mac, which [Carr knew to be] the alias of [defendant],
were getting jiggy with it, were playing GTA[10] last night and C Mac had killed
somebody during a robbery.”11
DISCUSSION
As noted above, defendant’s appellate counsel filed a brief pursuant to People v.
Wende, supra, 25 Cal.3d 436, asserting she could not identify any arguable issues in this
case. She also specifically asked us to consider four issues:
“[(1)] To the extent the issue is not deemed forfeited, whether the
court erred in denying appellant’s motion to suppress identification
evidence based on an unduly suggestive photo line-up and a failure to
comply with section 859.7’s requirement that the line-up be based on the
complaining witness’ description of the perpetrator;
9 Three Much did not have a “C” tattoo on his neck or any tattoos on his face.
10 Carr explained that GTA is slang for “Grand Theft Auto,” the video game.
11 In the same call, the person referred to as C Mac was identified as being
incarcerated for attempted robbery with a bail amount of $580,000, which was the exact
charge and bail amount for which defendant was in custody. “C Mac” was also listed as
defendant’s alias on his social media account.
9.
“[(2)] To the extent the issue is not deemed forfeited, whether the
court erred in denying appellant’s motion to quash and traverse the
warrants where the record reflects that the probable cause declarations’
description of the perpetrator was based on law enforcement’s review of the
surveillance video and omitted the complaining witness’ description of the
perpetrator as a white male;
“[(3)] Alternatively, if the section 1538.5 motions’ issues are
deemed forfeited, to the extent cognizable on appeal, the ineffective
assistance of counsel in failing to renew the suppression issues to preserve
appellant’s right for appellate review; and
“[(4)] To the extent cognizable on appeal, whether the court abused
its discretion and/or breached the terms of the negotiated plea agreement by
improperly withdrawing its indicated sentence after entry of the plea,
requiring appellant to enter a new plea for a much lengthier term.”
Defendant was also provided an opportunity to submit a supplemental brief, but
did not do so.
Because defendant indicated in his notice of appeal that the appeal is based on the
sentence and other matters occurring after the plea that do not affect the validity of the
plea, did not check the box indicating that the appeal was brought to challenge a motion
to suppress evidence under section 1538.5, and did not obtain a certificate of probable
cause, the issues he identified are not cognizable on appeal. (Cal. Rules of Court,
rule 8.304(b).) Nevertheless, because the record before us on those issues is complete,
we review all of the issues identified in the Wende brief on their merits to forestall any
later claims of ineffective assistance of counsel. (See People v. Williams (1998) 17
Cal.4th 148, 161, fn. 6 [an appellate court has authority to reach a claim not cognizable
on appeal]; People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise
discretion to consider claims not cognizable on appeal to forestall ineffective assistance
of counsel arguments].)
A. Motion to Suppress
As to the first issue we are asked to review, we find no error. Section 859.7 does
not mandate that an officer’s creation of a photo lineup be based exclusively upon an
10.
eyewitness’s description of a suspect. That Carr relied upon his own review of the
surveillance camera footage in preparing the lineup did not require suppression of the
identification evidence. The relevant portion of section 859.7 merely requires that
“[p]rior to conducing the identification procedure … the eyewitness shall provide the
description of the perpetrator of the offense.” (§ 859.7, subd. (a)(1).) D.H. did provide a
description in this case. Further, the lineup contained an admonition that satisfied the
instructional requirements of section 859.7, subdivision (a)(4).
Next, we consider whether the lineup was unduly suggestive because the
background of defendant’s photo was a different color from the other photos. Our high
court recently explained: a due process violation occurs “ ‘ “only if the identification
procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification.’ ” ’ [Citation.] If we determine the procedure was
suggestive, no due process violation arises if ‘ “ ‘the identification itself was nevertheless
reliable under the totality of the circumstances.’ ” ’ [Citation.] In assessing the totality of
the circumstances, we consider ‘ “such factors as the opportunity of the witness to view
the suspect at the time of the offense, the witness’s degree of attention at the time of the
offense, the accuracy of his or her prior description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse of time between the offense
and the identification.” [Citations.] “Against these factors is to be weighed the
corrupting effect of the suggestive identification itself.” [Citation.]’ ” (People v. Wilson
(2021) 11 Cal.5th 259, 283.)
In People v. Clark (2016) 63 Cal.4th 522, 557, the background color of the
defendant’s photo in a lineup was different from the others. Our Supreme Court
explained that the difference “did not render the photographic lineup unduly suggestive,
particularly in light of the express admonition to [the eyewitness] that he should pay no
attention to whether the photos were in color, in black and white, or to any other
difference in type or style of the photographs.” (Ibid.) In this case, the background on
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defendant’s photo was a noticeably different color than the other photos and the
admonition in this case also directed the witness not to consider any differences in the
type or style of the photographs. In light of the admonition, the lineup was not unduly
suggestive.
However, even if we were to assume the photo lineup was unduly suggestive,
D.H.’s identification of defendant was otherwise reliable. D.H. testified that the
difference in background color did not impact his identification of defendant; he
identified defendant because he recognized him. Further, the time between D.H.’s initial
interaction with defendant and his identification of defendant in the lineup was less than a
month.
B. Motion to Quash and Traverse Warrants
Next, defendant asks us to consider whether the trial court erred in denying his
motion to quash and traverse the warrants in light of the purported inconsistency between
Carr’s description of the suspect from the surveillance camera footage and D.H.’s
description of a white complected male, and the omission of the latter from the warrant
affidavit. We find no error.
A motion to traverse a warrant challenges the completeness and truthfulness of the
warrant affidavit’s probable cause showing. (Franks v. Delaware (1978) 438 U.S. 154,
155–156.) A defendant who challenges a warrant based on factual omissions in the
affidavit must show that the omissions were material to the probable cause determination.
(People v. Panah (2005) 35 Cal.4th 395, 456.) Facts omitted from a warrant affidavit are
“not material” if “there is no ‘substantial possibility they would have altered a reasonable
magistrate’s probable cause determination,’ and their omission did not ‘make the
affidavit[s] substantially misleading.’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 136,
italics omitted; accord, People v. Sandoval (2015) 62 Cal.4th 394, 409; People v. Scott
(2011) 52 Cal.4th 452, 484.) In other words, in order to be material, the omitted facts
12.
must negate a finding of probable cause. (Eubanks, at p. 136.) “We review the denial of
a Franks hearing de novo.” (Panah, at p. 457.)
Defendant asks us to consider whether the trial court erred in denying his motion
to traverse and quash the warrants because Carr relied upon his own observation of the
suspect in the surveillance camera footage to describe the suspect as a “Hispanic male
with short bushy hair …[,] a large ‘C’ tattoo on the right side of his neck[,] and an
unknown tattoo above his left eye,” and omitted D.H.’s description of the suspect as a
white complected male. We conclude it did not. Because we reach the merits of the
issue and find no error, we do not reach the issue identified in the alternative regarding
whether defendant’s trial counsel was ineffective in failing to preserve the issue.
The first warrant sought and obtained in this case was for authorization of a
residential arrest in a so-called Ramey warrant (People v. Ramey (1976) 16 Cal.3d 263;
now codified at § 817). In the warrant affidavit, Carr described his review of the security
camera footage and the description of the suspects he assembled therefrom: the gunman
had short, bushy hair, a “C” tattoo on the right side of his neck, and an unknown tattoo
above his left eye. The warrant was clear that the description of the suspect came from
the footage. He also described the ballistics match of the shell casing found at the
robbery and the scene of the first negligent discharge (near defendant’s sister’s home), as
well the report of defendant’s negligent discharge in his sister’s apartment. He then also
explained that D.H. had identified defendant in the photographic lineup. If Carr had
included D.H.’s description of the suspect as white complected, the outcome would have
been the same—probable cause existed to issue the warrant. The tattoo matches, the
ballistics match, and the positive identification by D.H. provided probable cause that
would not have been negated by D.H.’s initial comment that the suspected had a white
complexion. The trial court therefore properly denied defendant’s motion to quash the
Ramey warrant and all subsequent warrants (which were challenged on the same basis).
(People v. Eubanks, supra, 53 Cal.4th at p. 136 [trial court properly denied motion to
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quash warrants and suppress evidence where omitted facts would not have affected the
issuance of the warrants].)
C. Trial Court’s Withdrawal of Approval for the First Plea Agreement
Third, defendant asks us to consider whether the trial court abused its discretion in
withdrawing approval for his first plea agreement that would have resulted in an
eight-year term of imprisonment and instead sentencing defendant under a second plea
agreement that provided for a 19-year term of imprisonment. We conclude it did not.
Defendant appeared before three judges in this case. At the September 16, 2022
hearing, the judge who withdrew approval for the plea agreement explained that “[t]here
were some miscommunications between the prelim[inary hearing] judge and [the judge
who withdrew approval for the plea agreement]” about the indicated sentence. The
[judge who withdrew approval for the plea agreement] further explained at the September
30, 2022 hearing, “in this case the [c]ourt heard the preliminary hearing, but prior to
making a holding order discussed settling the case, based on indicated that had been
given by [the first judge assigned to the case]. There was some misunderstanding about
the indicated, which was eight years, that was prior to the prelim[inary hearing], prior to
learning about the gun testimony, et cetera, and, as a result, [the judge first assigned to
the case] was not willing to follow that indicated, nor was th[e court that withdrew
approval for the plea agreement].”
Section 1192.5 establishes that after a trial court has indicated its initial approval
of a plea agreement, “it may, at the time set for the hearing on the … pronouncement of
judgment, withdraw its approval in … light of further consideration of the matter.”
(§ 1192.5, subd. (c).) In criminal cases, the pronouncement of judgment occurs “ ‘when
the trial court orally pronounces sentence.’ ” (People v. Mendoza (2009) 171
Cal.App.4th 1142, 1150.) Thus, under section 1192.5, a court has broad discretion to
withdraw its original approval of a negotiated plea prior to sentencing. (People v. Silva
(2016) 247 Cal.App.4th 578, 588.) “The court’s discretion to do so is recognized as
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“ ‘near-plenary.’ ” (People v. Stamps (2020) 9 Cal.5th 685, 708.) “ ‘Generally, a trial
court may exercise its discretion to withdraw approval of a plea bargain because: (1) it
believes the agreement is “unfair” [citation]; (2) new facts have come to light; (3) the
court has become more fully informed about the case; or (4) when, after further
consideration, the court concludes that the agreement is “ ‘ “not in the best interests of
society” ’ ” [citation]. But this list is not exhaustive.’ ” (Id. at p. 706.) We review the
decision to withdraw approval of a plea bargain for an abuse of discretion, reversing only
if the decision is outside the bounds of reason. (People v. Mora-Duran (2020) 45
Cal.App.5th 589, 596.)
In this case, the trial court explained that the approval of the plea agreement was
based upon the indication of approval by the first judge assigned to the case. However,
that judge was not aware of the firearm-related testimony that was admitted at the
preliminary hearing. Upon learning of that testimony, the first judge assigned to the case
as well as the judge who withdrew approval for the plea agreement both agreed that the
sentence was not appropriate. This exercise of discretion to withdraw approval for the
plea agreement falls squarely within near-plenary discretion to withdraw approval for a
plea when the court has become more fully informed about the case. We find no abuse of
discretion.
D. Wende Review
Beyond the issues specifically identified by defendant’s counsel, we have
completed a thorough review of the record and we agree with defendant’s appellate
counsel there are no arguable issues in this case. Defendant entered a plea agreement, he
was sentenced to a term of imprisonment as set out in the plea agreement, and the
remainder of the terms were complied with by both parties. He was fully advised of the
consequences of his plea, and he waived his constitutional rights. There is nothing in this
record to suggest any error occurred.
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DISPOSITION
The judgment is affirmed.
16.