P. v. Acosta














Filed 3/6/17 P. v. Acosta CA4/1






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

AUSTIN ACOSTA,

Defendant and Appellant.

D070853



(Super. Ct. No. SCS285356)

APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Austin Acosta entered a negotiated guilty plea to one count of carjacking (Pen. Code, § 215, subd. (a)).[1] He also admitted he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and one prior strike conviction within the meaning of section 667, subdivisions (b)-(i).
The court sentenced him to a stipulated prison term of 15 years, consisting of the five-year midterm for carjacking (§ 215, subd. (b)), doubled because of the prior strike (§ 667, subd. (e)(1)), plus a consecutive five years because of the prior serious felony conviction (§ 667, subd. (a)(1)).
The court denied Acosta's motion to withdraw his plea and his application for a certificate of probable cause.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not identified any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Acosta the opportunity to file his own brief on appeal, but he has not responded. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Entry of Guilty Plea
In March 2016 Acosta was charged with two counts of carjacking (§ 215) and two counts of robbery (§ 211). The complaint also alleged Acosta had suffered one prior prison term with the meaning of sections 667.5, subdivision (b) and 668; one prior serious or violent felony conviction within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c); and one prior strike conviction within the meaning of section 667, subdivisions (b)-(i), 1170.12 and 668. Acosta faced a 23-year maximum prison sentence on these charges and allegations. The deputy district attorney informed Acosta's counsel that if the case proceeded to a preliminary hearing, the People would add a gang allegation to each count, elevating Acosta's exposure on each of the two carjacking counts to 30 years to life, for a total of 60 years to life.
On March 21, 2016, at the scheduled readiness hearing, Acosta pleaded guilty to one count of carjacking and admitted that he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and one prior strike conviction within the meaning of section 667, subdivisions (b)-(i). The plea agreement provides for a stipulated 15-year prison sentence. In exchange, the court granted the People's motion to dismiss the remaining charges and allegations.
As the factual basis for his guilty plea, Acosta stated under penalty of perjury on his change of plea form that he unlawfully took a motor vehicle in the possession of a third party by force from his person and immediate presence against his will and with the intent to permanently deprive that person of possession of the vehicle. He also admitted a prior strike and a prior serious felony. He further stated his only inducement for entering a guilty plea was the district attorney's stipulation to a 15-year prison term and dismissal of the balance of the charges and allegations. Acosta also indicated, through his initials on the change of plea form, he had read and understood all of the conditions and consequences of his guilty plea and he was voluntarily giving up his constitutional rights, including the right to a jury trial and the right to confront witnesses against him. Pertinent here, Acosta indicated, through his initials on the form, "I give up my right to appeal the following: (1) denial of my [section] 1538.5 motion, (2) issues related to strike priors (under . . . sections 667 [subdivisions] (b)-(i) and 1170.12, and (3) any sentence stipulated herein." Acosta's attorney also signed the change of plea form under the "Attorney's Statement" section that states: "I, the attorney for the defendant in the above-entitled case, personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea . . . . I concur in the defendant's plea and waiver of constitutional rights."
At Acosta's change of plea hearing, the court asked Acosta if he had reviewed the guilty plea form with his attorney, and if he had enough time to spend with his attorney. Acosta replied, "Yes" to both questions. The court asked Acosta if he had any questions for the court, and he replied, "No." Acosta confirmed the factual basis for his guilty plea was he committed a carjacking and that he had a prior strike and serious felony conviction. He also confirmed that other than the 15-year stipulated prison term, there were no other inducements or promises, and there were no threats that caused him to plead guilty. Acosta pleaded guilty to one count of carjacking which is also a serious felony prior within the meaning of section 667, subdivision (a)(1). The court accepted his plea.
B. Motion to Withdraw Guilty Plea
Before sentencing, Acosta indicated he wanted to withdraw his plea. Although the record does not indicate Acosta expressed dissatisfaction with his appointed attorney, apparently he did, because before scheduling the motion to withdraw the plea, the court conducted a closed hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). There, the court asked Acosta whether his motion to withdraw the plea was "based on anything that your attorney did that you think she should be fired and replaced with a new attorney?" Acosta replied, "No, sir." Acosta stated he did not have "any problem" with his attorney "at all" and his motion to withdraw the plea was "not based on anything that she did." The court "den[ied] the Marsden [motion] at this point" and set a hearing for Acosta's motion to withdraw his plea.
Subsequently, Acosta's attorney filed a motion to withdraw the plea. To place the motion in context, some additional factual background is necessary.[2]
On March 2, 2016, shortly after midnight, Alejandro F. and Raul H. were walking to their parked cars. A van driven by Vanessa Garcia drove past them and then made a U-turn and returned to where the two men were standing. After exiting the van, Acosta approached Alejandro and Raul, reached towards the back of his waistband, and demanded their car keys, threatening to stab or shoot them. Believing Acosta was armed, Alejandro allowed him to take his car keys and wallet. Acosta also took Raul's car keys and his iPhone. Garcia searched Alejandro's car, and took his iPhone. Acosta fled in Alejandro's car, with Garcia following in the van.
Using his iPhone's "Find My Phone" application, Raul tracked his stolen phone to an apartment building on Imperial Avenue and called police. There, police found Garcia's van and determined Acosta was listed as a resident. After obtaining consent to search an apartment, police found Raul's iPhone in a room where Acosta and Garcia had been sleeping. Police later recovered Alejandro's car.
Police arrested Garcia and Acosta, and interviewed them both. At one point in his interview, Acosta admitted to the carjacking, stating, "I just told that fool to give me the keys and that's it. There was no weapon or violence involved. I just told that fool to let me get the keys and they gave them up. I was like how easy is this going to get?"
In his motion to withdraw his plea, Acosta filed a declaration stating he had consumed "a large amount of pills" on the night of the carjacking. He stated he was "under the influence at the time of the confession" and was only telling the police officers "what they wanted to hear." Acosta stated he had "no actual memory" of the carjacking. Acosta asserted that it was not until June 21, 2016—after his plea—that the district attorney's office discovered a video recording of his confession. He stated the video would show he was "under the influence at the time of my confession, and also that I merely recited back facts to police concerning the carjacking, after those facts were given to me."
In his declaration, Acosta also asserted that it was only after his plea that he spoke to his sister, who told him that on the night of the carjacking Acosta was so intoxicated he was "unable to speak clearly" and at one point "fell to the floor of the apartment." Acosta said his sister told him that when Garcia picked him up in the van, another male got into the van with him and Garcia. According to his sister, Acosta's father saw the same thing and could corroborate these facts.
Acosta stated that if he had known about the video of his confession, and the facts to which his sister and father could testify about the extent of his intoxication and the presence of another man at the carjacking and robberies, he would not have entered a guilty plea.
In an accompanying memorandum of points and authorities, Acosta's lawyer asserted the plea was involuntary because the People "fail[ed] to timely turn over a video recording" of Acosta's interview with police officers, which limited counsel's and Acosta's "abilit[ies] to evaluate his case prior to the plea."
Opposing Acosta's motion, the People noted that on March 14, 2016—three days after the felony complaint was filed—the district attorney's office uploaded electronic discovery and the public defender's office downloaded the discovery the same day. The People asserted, "Included in the March 14, 2016 discovery was [San Diego Police Department] Detective Padilla's investigation report which detailed [d]efendant's and his co-defendant's recorded admissions." This discovery states, "During a videotaped interview with Acosta, Acosta admitted to taking the car keys and the victim's vehicle." Accordingly, the People asserted that prior to the plea Acosta and his lawyer knew there was a videotaped confession and were "well aware of the strength of their case on March 21, 2016 when [Acosta] entered his plea of guilty." Moreover, the People stated Acosta admitted that three days before his plea he told his attorney he "did not have a clear memory of the night of the incident" and had "consumed a large amount of pills that night." Thus, Acosta and his lawyer knew about his claimed intoxication before he entered his plea.
The People submitted a transcript of the recorded police interview with Acosta. The People also submitted a declaration from the supervising district attorney investigator, which authenticated transcripts of recorded telephone calls Acosta made while in jail. Acosta made 16 such calls to his sister's number between March 9, 2016 and March 20, 2016 (the day before his plea). In one such conversation on March 9, 2016, Acosta said, "I'm sorry for taking a car like that. I don't know what I was thinking." Later in the same conversation, after Acosta's sister said people were blaming her for what happened, Acosta said, "It's nobody's fault but mine. It's my fault. Nobody made the decision but me. I'm the one that did it."
On July 14, 2016, the court conducted a hearing on Acosta's motion to withdraw his plea. Acosta insisted on testifying at this hearing. Acosta's attorney asked him, "[W]hat was the timing with regards to when we found out about the suspects in the case or the actual other suspect in the case from your sister versus when you pled guilty?" Acosta answered: "Well, I can't really recall that one."
Acosta also testified he agreed to the plea because he "didn't want to end up doing life." On cross-examination, Acosta admitted that before pleading guilty he knew he was "high" when he committed the crimes. Acosta also admitted that before he changed his plea his father visited him several times in jail, and during those visits, his father spoke to him about having seen Acosta with another man the night the crimes occurred.
At the end of the hearing, the court denied Acosta's motion to withdraw his plea, stating:
"I don't believe the defense has met their burden in this case to show that there was anything illegal, unlawful, or anything that was done by the prosecution to withhold evidence or that the defendant was not fully informed of the consequences of his plea. He did this because he wanted to avoid a life sentence in this case. That is a perfectly good reason to take a plea deal in a criminal case."

C. Notice of Appeal; Application for Certificate of Probable Cause
On August July 22, 2016, Acosta filed a request for a certificate of probable cause, stating:
"My plea of guilty was based on the police reports that were in my possession prior to my plea. I pled guilty, believing I had committed the crime based on statements I allegedly made to police concerning my involvement, but believed I was in a drug induced blackout at the time of the incident. After my plea, new information (in the form of my videotaped confession with police, and conversations I had with my sister about a third suspect that was with me on the night of the incident) made me realize I was not guilty of the crime. Had I known of this information at the time of my plea, I would not have pled guilty in this case."

The court denied Acosta's request for a certificate of probable cause. Acosta filed a notice of appeal and, later, an amended notice of appeal "based on the sentence or other matters occurring after the plea."
DISCUSSION
Acosta's appellate lawyer has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, asserting he failed to identify any arguable issues in this case. As required by Anders, supra, 386 U.S. 738, counsel has set forth the following claims that he asserts arguably support the appeal:
1. "Did the court sentence [Acosta] according to the plea agreement?"

2. "Did the court abuse its discretion in denying [Acosta's] motion to withdraw his guilty plea?"

3. "Did the court abuse its discretion in denying [Acosta's] request for a certificate of probable cause?"

4. Was [Acosta] prejudiced by his trial counsel's failure to view the video or view the transcript of [Acosta's] police interview where he confessed prior to entry of [Acosta's] guilty plea?"

As explained post, a review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues.
A defendant must obtain a certificate of probable cause to appeal from the denial of a motion to withdraw a guilty plea. (People v. Johnson (2009) 47 Cal.4th 668, 679 (Johnson).) A certificate of probable cause is also required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement. (Id. at p. 678.) The purpose of this procedural limitation is "to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted." (People v. Buttram (2003) 30 Cal.4th 773, 790.)
The only two exceptions to obtaining a certificate recognized by the California Supreme Court in Johnson, supra, 47 Cal.4th 668 involve an appeal based on the denial of a motion to suppress evidence under section 1538.5 or on grounds that arose after entry of the plea that do not affect the plea's validity. (Johnson, at p. 677.)
Here, the issues counsel has identified that might arguably support the appeal are challenges to the validity of Acosta's plea and a challenge to the sentence that was an integral part of that plea. These issues are precluded because the court denied Acosta's request for a certificate of probable cause. (Johnson, supra, 47 Cal.4th at pp. 678-679.) There is nothing in the record indicating Acosta sought to timely challenge the court's denial of his request for a certificate of probable cause by filing a petition for a writ of mandate. (Id. at pp. 676–677 [the appellate remedy for the denial of a request for a certificate of probable cause is a petition for a writ of mandate].)
We have reviewed the entire record and conclude that even if we were to treat this appeal as a petition for a writ of mandate, the trial court did not abuse its discretion in denying Acosta's application for a certificate of probable cause. Acosta's own testimony at the hearing on his motion to withdraw his plea amply supports the order denying his request for a certificate of probable cause. Acosta admitted he accepted the plea to avoid a possible life sentence. Asked, "What was the timing with regards to when [you] found out about the suspects in the case or the actual other suspect in the case from your sister versus when you pled guilty"—Acosta answered he could not recall. On cross-examination, Acosta admitted that before changing his plea he had spoken to his sister about the fact he was "high on the date of the crime." Acosta also admitted that before changing his plea, he spoke to his father, who said he had seen him with another male on the night of the carjacking. This testimony not only undercut the alleged basis for Acosta's motion to withdraw his plea, but impeached Acosta's declaration, signed under penalty of perjury, asserting opposite facts. The trial court did not abuse its discretion in concluding, "Mr. Acosta himself filed a declaration under penalty of perjury, that it wasn't until after his plea that he talked to his sister about his condition that night. This is an absolutely untrue statement based on the tape recordings that the district attorney obtained from the jail conversations between the defendant and his sister, which puts his credibility at issue."
Moreover, in a recorded jail telephone call with his sister 12 days before entering his plea, Acosta admitted committing the carjacking. Additionally, the court correctly noted there was no evidence the People improperly failed to produce discovery or concealed information from Acosta or his lawyer.
DISPOSITION
The judgment is affirmed.


NARES, J.

WE CONCUR:



McCONNELL, P. J.



BENKE, J.


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[1] All statutory references are to the Penal Code.
[2] Acosta pleaded guilty before there was a preliminary hearing. The following facts are taken from the probation report, which in turn relied on San Diego Police Department reports.