P. v. Ferguson

Filed 3/29/06 P. v. Ferguson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Jack Morgan, Judge. Dismissed.

PETITION for Writ of Habeas Corpus. Writ denied.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Jimmy Ferguson appeals the judgment entered after conviction following his plea of no contest to assault by means of force likely to produce great bodily injury in which he personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).)^[1] Pursuant to a plea bargain, the trial court sentenced Ferguson to a term of five years in state prison.

We reject the claims raised by Ferguson in his supplemental opening brief and his petition for writ of habeas corpus and dismiss Ferguson's appeal for failure to obtain a certificate of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

A complaint charged Ferguson with assault with a deadly weapon committed on November 5, 2004, upon one Charley Ford, with a baseball bat. The complaint alleged a great bodily injury enhancement, two prior serious or violent felony convictions and three prior prison terms.

At the preliminary hearing, Ford testified Ferguson struck him, breaking his jaw. The injury required a metal plate and a four-day hospital stay. Ford admitted he was not certain what Ferguson had used to strike him and admitted it could have been Ferguson's fist. A peace officer testified Nellie Adkins reported that Ferguson struck Ford in the face with a metal tube.

On February 14, 2005, the trial court granted Ferguson's request to proceed in propria persona.

On February 23, 2005, Ferguson entered into a plea bargain pursuant to which he pleaded no contest to assault with a deadly weapon and admitted a great bodily injury enhancement. In exchange, the People struck the baseball bat allegation as well as the prior conviction and prior prison term allegations and the trial court sentenced Ferguson to the low term of two years for the assault, plus three years for the great bodily injury enhancement.

Ferguson filed a 20-page notice of appeal and requested a certificate of probable cause. The trial court denied the request, noting the case had been resolved by a negotiated disposition and sufficient grounds did not support the request.

CONTENTIONS

We appointed counsel to represent Ferguson on this appeal. After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

Ferguson filed a supplemental opening brief and a petition for writ of habeas corpus.^[2] In the supplemental opening brief, Ferguson asserts he is entitled to immediate release from prison because the underlying conviction is based on perjured testimony and false testimony procured through a conspiracy, the trial court erroneously denied a request for a continuance and defense counsel rendered ineffective assistance.

In the petition for writ of habeas corpus, Ferguson reiterates many of the claims he raises in the supplemental opening brief. He additionally contends the evidence is insufficient to support the conviction and the trial court committed sentencing error.

DISCUSSION

1. The alleged use of perjured testimony.

Ferguson contends he is entitled to immediate discharge from custody because his conviction was based on perjured testimony given by Ford at the preliminary hearing. (In re Lindley (1947) 29 Cal.2d 709.) Ferguson asserts both the prosecutor and defense counsel were aware of Ford's perjury because they questioned Ford based on a supplemental report dated November 10, 2004, which demonstrated the falsity of Ford's testimony.

Ferguson also contends Ford and Adkins conspired to report falsely to the police that Ferguson struck Ford with a metal tube or object. Ferguson asserts Adkins was not present at the scene of the incident but claimed she had witnessed Ferguson strike Ford with a metal object. Ferguson notes Adkins changed her story while she was in police custody from a metal tube to a baseball bat. Ferguson asserts defense counsel knew this information but concealed it and never tried to use it to Ferguson's benefit.

Although the use of perjured testimony may, in some circumstances, require dismissal of a criminal prosecution, none of the testimony attributed to Ford or Adkins at the preliminary hearing has been shown to be false. Although Ferguson repeatedly asserts the supplemental police report in possession of both the prosecutor and defense counsel contained evidence demonstrating Ford's perjury, Ferguson does not indicate specifically how this is so. Rather, he generally relies on the inconsistencies in the description of the weapon Ferguson may have used to strike Ford. However, these inconsistencies can be attributed to factors other than conspiracy and perjury such as failure to observe or recollect due to the stress of the incident.

Additionally, Ferguson's plea of no contest avoided litigation of these issues. It is settled that a no contest plea admits every element of the charged offense, concedes the prosecution possesses legally admissible evidence sufficient to prove guilt beyond a reasonable doubt and waives any right to raise questions regarding the evidence, including its sufficiency or admissibility. Thus, other than search and seizure issues, which are specifically made reviewable by section 1538.5, subdivision (m), all errors arising prior to the entry of a no contest plea are waived except those which question the jurisdiction or legality of the proceedings resulting in the plea. (People v. Egbert (1997) 59 Cal.App.4th 503, 509.)

In sum, absent any proof of perjury or conspiracy, other than Ferguson's bald assertions, and given that Ferguson's no contest plea waived a trial on these issues, Ferguson's request for release must be denied.

2. Failure to grant a 30-day continuance.

On February 14, 2005, Ferguson was granted pro per status. The trial court told Ferguson to be ready for trial the next day. On that date, the trial court granted the prosecutor a continuance to February 18, 2005. On February 18, 2005, the trial court denied Ferguson's request for a 30-day continuance and instead granted a continuance until February 23, 2005, on condition Ferguson would be ready for trial. Ferguson agreed.

Ferguson contends he was forced to accept the continuance, even though February 23 was only two working days away, and on February 23, Ferguson saw no alternative but to plead guilty because he had not been given sufficient time to prepare the case. Ferguson concludes this two-day continuance constituted a denial of his constitutional rights. (People v. Cruz (1978) 83 Cal.App.3d 308, 325; People v. Maddox (1967) 67 Cal.2d 647, 652-653.)

Ferguson has failed to demonstrate error and, in any event, this claim does not survive Ferguson's no contest plea and the failure to obtain a certificate of probable cause. (See In re Chavez (2003) 30 Cal.4th 643, 650-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1099.) Accordingly, Ferguson may not at this point seek reversal of his conviction based on the trial court's assertedly erroneous denial of a continuance.

3. Ineffective assistance of counsel.

Before addressing Ferguson's claims of ineffective assistance of counsel, we note that while ineffective assistance of counsel may present an issue that goes to the legality of the proceedings (see People v. Marlin (2004) 124 Cal.App.4th 559, 567), Ferguson represented himself at the time of the no contest plea. A criminal defendant who elects to represent himself will not be heard to complain on appeal that his own self-representation constituted ineffective assistance of counsel. (People v. Bloom (1989) 48 Cal.3d 1194, 1226.) Moreover, even if Ferguson's self-representation at the time he entered the no contest plea is overlooked, his claims of ineffective assistance of counsel are meritless.

Ferguson asserts defense counsel provided ineffective assistance by concealing procedural and statutory violations from the trial court and Ferguson. Ferguson also claims defense counsel defended nonchalantly as evidenced by counsel's statement, at a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) on February 7, 2005, that it was not counsel's job â€