People v. Osby CA2/5 ( 2022 )

Filed 4/27/22 P. v. Osby CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B314763
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA438205)
v.
DAVID OSBY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
The jury found defendant and appellant David Osby guilty
of robbery (Pen. Code, § 211 [count 1])1 and resisting an officer
(§ 69 [count 2]). The jury found true the allegations that Osby
used a deadly weapon, a knife, in the commission of count 1
(§ 12022, subd. (b)(1)), and that he suffered three prior serious
felony convictions within the meaning of the three strikes law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and section 667,
subdivision (a). The trial court sentenced Osby to a total of 25
years to life in prison, plus a determinate term of 17 years.
On appeal, we reversed the convictions (the panel majority
held the trial court abused its discretion by retaining a juror
whose incompetence to serve appeared as a demonstrable reality
in the record, and the concurring justice opined reversal was
necessary because of error in the trial court’s ruling permitting
Osby to represent himself). (People v. Osby (Apr. 22, 2021,
B299496) [nonpub. opn.].)
On remand, Osby accepted a plea offer made by the People;
he pleaded no contest to the robbery in count 1 and admitted a
prior strike conviction. Consistent with the plea offer made and
accepted, the trial court sentenced him to a total of four years in
prison. Osby was awarded credit for time served and released
from custody to parole.
Osby timely appealed. We appointed counsel. After
reviewing the record, counsel filed an opening brief asking this
court to review the record independently pursuant to People v.
Wende (1979) 25 Cal.3d 436, 441 (Wende). On March 3, 2022, we
advised Osby through trial counsel that he had 30 days to submit
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
any contentions or issues he wished us to consider. No response
has been received to date.2
“In the case of a judgment of conviction following a plea of
guilty or no contest, section 1237.5 authorizes an appeal only as
to a particular category of issues and requires that additional
procedural steps be taken. That statute provides: ‘No appeal
shall be taken by the defendant from a judgment of conviction
upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, except where both
of the following are met: [¶] (a) The defendant has filed with the
trial court a written statement, executed under oath or penalty of
perjury showing reasonable constitutional, jurisdictional, or other
grounds going to the legality of the proceedings. [¶] (b) The trial
court has executed and filed a certificate of probable cause for
such appeal with the clerk of the court.’” (In re Chavez (2003) 30
Cal.4th 643, 650.) “[I]t is settled that two types of issues may be
raised in a guilty or nolo contendere plea appeal without issuance
of a certificate: (1) search and seizure issues for which an appeal
is provided under section 1538.5, subdivision (m); and (2) issues
regarding proceedings held subsequent to the plea for the
purpose of determining the degree of the crime and the penalty to
be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74
2 On March 3, 2022, appellate counsel filed an affidavit
with this court stating that he had been unable to locate Osby.
Counsel spoke with trial counsel, but trial counsel had no
information regarding Osby’s whereabouts. Appellate counsel
also spoke to the parole department, which informed him that
Osby was no longer on parole. Appellate counsel contacted
several jails, but Osby was not in custody in any of the jails
counsel contacted.
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(Panizzon); see also People v. Mendez (1999) 19 Cal.4th 1084,
1096.) “ ‘[S]ection 1237.5 does not allow the reviewing court to
hear the merits of issues going to the validity of the plea unless
the defendant has obtained a certificate of probable cause, or has
sought and obtained relief from default in the reviewing court.’
[Citation.]” (Panizzon, supra, at p. 75.)
We have examined the entire record. We are satisfied no
arguable issues exist and that Osby’s counsel has fully satisfied
his responsibilities under Wende. (Smith v. Robbins (2000) 528
U.S. 259, 279–284; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The trial court’s judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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