Filed 8/18/17 P. v. Dennis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, Teresa Torreblanca and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

In this case, Gregory Damon Dennis seeks to challenge his guilty plea based on his claim that some of the victim's medical records might have been withheld, and that those records might be exculpatory within the meaning of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Dennis did not bring a motion to withdraw his plea and there is no evidence in this record that any medical records were withheld from Dennis. In essence he contends that we should set aside his guilty plea and remand the case to the trial court so he can find out if any records have been withheld and what the nature of those records might be.

As we will explain, Dennis cannot plead guilty and then challenge the preplea discovery proceedings on appeal. Because Dennis did not move to set aside his guilty plea and request an evidentiary hearing, this record is devoid of evidence that any records were withheld from him by the prosecution or anyone else. The record shows the prosecution subpoenaed medical records for the victim and turned them over to Dennis, who was representing himself. At various times, Dennis acknowledged he had received such medical records. In sum, there is no basis in this record to set aside his guilty plea.

FACTS AND PROCEDURAL BACKGROUND

Dennis represented himself in the trial court pursuant to Faretta v. California (1975) 422 U.S. 806. He pleaded guilty to one count of elder abuse (Pen. Code,[1] § 368, subd. (b)(1)) and admitted he inflicted great bodily injury on the victim (§ 12022.7, subd. (c)). Dennis also admitted four strike priors (§ 667, subds. (b)-(i)). The parties agreed to an eight-year "lid" on the sentence. The remaining charges and allegations were dismissed. Dennis was sentenced to an eight-year term in prison.

Dennis appealed and obtained a certificate of probable cause. (§ 1237.5.)

Since this appeal is from a guilty plea and the facts of the offense are not particularly relevant we will include only a brief summary of the facts from the probation officer's report.

The victim, a 75-year-old male was visiting in San Diego when he got into an argument with Dennis. Dennis believed the victim had insulted him and knocked the victim down, kicking him in the face. The victim was rendered unconscious for a brief period and was taken to the hospital. The victim had a blood alcohol of .166 percent at the time of the attack.

DISCUSSION

Dennis does not challenge the guilty plea itself. Rather he contends the prosecution might have withheld some exculpatory medical records and therefore he should be able to withdraw his plea. As we have observed there is nothing in this record to indicate that any discoverable or exculpatory material was withheld from Dennis. For that reason, we will decline to join the parties in the debate over the proper impact of a "Brady" violation on a guilty plea.

A person who pleads guilty cannot ordinarily challenge the conviction based on alleged errors in the preplea court proceedings. "Other than search and seizure issues which are specifically made reviewable by section 1538.5, subdivision (m), all errors arising prior to entry of the guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea." (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) The guilty plea concedes there is evidence to prove guilt beyond a reasonable doubt. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177; In re Chavez (2003) 30 Cal.4th 643, 649.)

The parties debate the question of whether Brady violations can be raised on appeal following a plea of guilty. They parse the question of whether such materials merely impeach the government's witnesses or are truly "exculpatory." However challenging such distinctions might be, we have no idea on this record what the so-called Brady material might be.

We also note Dennis did not bring a motion to withdraw the guilty plea. He did not raise any issue regarding the failure to provide Brady material in the trial court during his guilty plea or subsequent sentencing proceeding. The first hint of an issue was contained in the lengthy declaration Dennis filed in his application for a certificate of probable cause. However, the declaration reviews the entire case and his various grievances with the prosecution, the police and others. The declaration does not identify what records he should have received. We have not discovered anything in this record which identifies anything that might have been withheld. Dennis raised multiple discovery and disclosure issues in the myriad motions he filed. However, as we have pointed out above, the prosecution obtained the victim's medical records and provided them to Dennis. Indeed, in several of the motions he filed, Dennis acknowledged receipt of such records. Had Dennis pursued a motion to withdraw his plea and obtained an evidentiary hearing, we might have some idea of the material at issue, if any. However, on this empty record we have nothing from which we can determine if there was any violation, even if such might be cognizable on appeal.[2]

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.