P. v. Freeman

Filed 3/8/07 P. v. Freeman CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Christopher G. Estes, Judge. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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This is the second time this case, which arises out of defendant and appellant John Henry Freemans plea of no contest to the charge of second degree burglary and admission of certain enhancements, has come before us on appeal. Defendant contends he should be allowed to withdraw his plea. We disagree and affirm.

PROCEDURAL BACKGROUND

Defendant was charged with second degree burglary (Pen. Code,  459); nine prior prison term enhancements (Pen. Code,  667.5, subd. (b)) and one Three Strikes law enhancement were also alleged.^[1] He pled no contest to the charge and admitted the enhancements in exchange for a five year term of probation. The trial court, Judge Alan Rosenfield presiding, explained to defendant that, if he failed to perform successfully on probation, defendants prison exposure could be six years (the three-year high term for second degree burglary doubled pursuant to Three Strikes), plus as much as nine consecutive one year terms for each of the enhancements. Following the plea, he was placed on probation for five years under specified terms.

On February 20, 2004, defendants probation was revoked for failure to report for probation. At the hearing on that probation violation, the trial court, Judge Christopher Estes presiding, agreed to reinstate defendants probation in exchange for defendants admission of the failure to report violation. In so doing, Judge Estes warned defendant: [I]f you dont start reporting, not only to your parole agent, but also your probation officer, the next time youre back here there wont be any reinstating of probation. You will be on your way to prison.

Subsequently, the District Attorneys office filed a request for revocation of probation alleging that defendant had violated Health and Safety Code section 11377 (possession of a controlled substance). Judge Estes presided at the August 19, 2004, revocation hearing at which a police officer testified to his discovery of a pipe and methamphetamine on defendants person during a traffic stop. Judge Estes found defendant in violation of his probation.

At the sentencing hearing, Judge Estes stated that he considered the fact that this sentence at the time it was imposed, or I should say at the time that the defendant was placed on probation, was not within the law because of the Strike priors admission. The defendant should not have been placed on probation. [] Probation was strictly prohibited by the admission of the prior conviction and the fact that the defendant should have been sent to state prison at that time, and the court is prepared to proceed with sentencing today. Whereupon Judge Estes sentenced defendant to 10 years in prison comprised of four years for burglary (the two year midterm doubled pursuant to Three Strikes), plus a consecutive one year for each of six prison term enhancements.

In the prior appeal, defendant argued he should be allowed to withdraw his plea because (1) he was not advised of the direct consequences of that plea, and (2) he was denied the benefit of the bargain.^[2] In the prior opinion, we concluded that defendants ineligibility for probation under the Three Strikes law (Pen. Code,  667, subd. (c)(2)) was a direct consequence of the plea of which defendant should have been advised, but was not. (People v. Crosby (1992) 3 Cal.App.4th 1352, 1355.) We also found that the error was harmless inasmuch as defendant had failed to show a reasonable probability that he would not have entered the plea had he known that, if he violated probation, he would necessarily be sentenced to prison. We also concluded that eligibility to be reinstated on probation following a violation was a significant implied term of defendants plea bargain. We ordered the matter remanded for the trial court to determine whether it would have sentenced defendant to prison even if it had the discretion to reinstate probation [and if so] the judgment shall be reinstated.

On February 14, 2006, the trial court reinstated the judgment stating: [T]his court does not believe that the defendant . . . is a good candidate for probation. [] He was given the opportunity to be placed on probation. He did not take advantage of that opportunity. Hes found in violation of probation. [] This court does not believe that there is a good likelihood the defendant will live successfully in the general community. [] The answer to the Court of Appeal[s] question is that this court would have sentenced the defendant to prison even if it had discretion to revoke and reinstate probation. Defendant filed a timely notice of appeal from the reinstated judgment.

On June 29, 2006, defendants appointed appellate counsel filed an opening brief which raised no issues under Wende, supra, 25 Cal.3d at page 442. On November 1, 2006, with the courts permission, defendant in pro. per. filed a supplemental opening brief in which he contended: (1) a benefit of defendants plea bargain was the prosecutors promise not to proceed on the Three Strikes prior conviction admission in the event of a probation violation; (2) the prosecutor engaged in misconduct by charging defendant with second degree burglary without sufficient evidence; (3) there was insufficient evidence of a probation violation; (4) he received ineffective assistance of counsel; and (5) even if individually harmless, cumulatively these errors were prejudicial.^[3] At the invitation of this court, defendants appellate counsel filed a supplemental brief on December 13, 2006, in which he contended: Appellant is entitled to relief under the facts presented in his supplemental opening brief on appeal and habeas corpus.

DISCUSSION

1. The Prosecutor Did Not Promise to Never Use the Three Strikes Prior

Admission

As we understand defendants contention, it is that the benefits of his plea bargain included not just his continuing eligibility for reinstatement of probation following a probation violation (the issue resolved in the prior appeal), but also a promise by the prosecutor to not proceed on the strike in the event of a probation violation. He argues he was denied this benefit because the sentence imposed upon revocation was doubled pursuant to Three Strikes. We disagree.

That the prosecutor did not promise to refrain from using defendants admission of a Three Strikes prior conviction in any subsequent probation violation proceeding is demonstrated by the comments made by the trial court at the October 21, 2003, hearing: THE COURT: There is a disposition, as I understand it, for a plea to count one, which is the commercial second degree burglary. People will not proceed on the strike in this case as I understand it. [] [THE PROSECUTOR]: Yes, Your Honor. But he will admit to it plus the other 667.5 priors. [] THE COURT: So what I meant is you are asking for a prison sentence. You are going to go along with a grant of probation for five years. [] [THE PROSECUTOR]: Correct. Based on the -- yes. [] THE COURT: The priors will be admitted and this means, sir, that if you -- if everything goes well on probation, you will have done just about time served on this case and you will never be back to see me again. But Judge Rosenfield explained to defendant if he failed to perform on probation, defendants prison exposure could be the three-year high term for second degree burglary, doubled pursuant to Three Strikes (as well as nine additional years for the prior prison enhancements). Thus, defendant was advised that, should he violate probation, he could be sentenced under the Three Strikes law. That there was no promise by the prosecution to never proceed under the Three Strikes law is explicit in the warning that defendant could be subject to sentencing under the Three Strikes law in the event he were to violate probation.

2. Prosecutorial Misconduct

Defendants contention that the prosecutor committed misconduct by charging him with second degree burglary when there was insufficient evidence to support the charge is without merit.

By pleading no contest to the charge, defendant waived any claim of insufficiency of the evidence. (People v. Turner (1985) 171 Cal.App.3d 116, 125 [a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility]; People v. Superior Court (Barke) (1976) 64 Cal.App.3d 710, 715, fn. 2 [a plea of nolo contendere is the legal equivalent of a guilty plea for purposes of the criminal law].)

3. Sufficiency of the Evidence of the Probation Violation

Defendant contends the finding that he violated probation is not supported by substantial evidence. As we understand his argument, it is that the arresting officers testimony was not sufficient to support the finding because, among other things, the pipe the officer testified he found on defendants person was not introduced into evidence. We disagree.

A probation violation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Kurey (2001) 88 Cal.App.4th 840, 849.)

Here, the arresting officer testified at the probation violation hearing that, during a traffic stop, he discovered a pipe and a small baggy that contained an off-white crystal residue, which was either -- residue or powdered cocaine on defendants person; he booked the pipe and the powder residue into evidence. The analyzed evidence report which identified the powder as methamphetamine was admitted into evidence, as were photographs of the packaging, the baggie, and the substance the officer found on defendants person. The pipe itself was not introduced into evidence, nor was a photograph of the pipe.

The officers testimony and the analyzed evidence report constituted sufficient evidence to establish, by a preponderance of the evidence, that defendant was in violation of the probation condition that he not possess any narcotics or associated paraphernalia.

4. Ineffective Assistance of Counsel

Defendant contends he received ineffective assistance of counsel as a result of trial counsels (1) failure to file certain pretrial motions that, defendant speculates, would have led to either a dismissal or a reduction of the charge of second degree burglary; and (2) failure to object, under People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), to sentencing by a judge other than the judge who accepted defendants original plea. We disagree.

  [I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citations.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.   [Citations.] (In re Thomas (2006) 37 Cal.4th 1249, 1256.)

Here, defendant has failed to show either deficient performance by counsel or prejudice. First, as we have already discussed, by pleading no contest to the charge of second degree burglary, defendant waived any argument as to the sufficiency of the evidence of that charge. This necessarily includes any argument that the state of the evidence established grounds for a motion to dismiss or reduce the charges. Moreover, defendants assertion that such a motion would have been well taken is entirely speculative and, as such, not sufficient to establish the prejudice element of an ineffective assistance claim.

Also without merit is defendants argument that counsel was ineffective for failing to object, under Arbuckle, to sentencing by a judge other than the judge who took his no contest plea. This is because Arbuckle does not extend to probation violation hearings. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1159.) In Martinez, the court observed:  Arbuckle gave defendants the right to be sentenced . . . by the same judge who accepted a plea of guilty . . . [But] there is a distinction between a sentencing hearing following a plea of guilty and a sentencing following a revocation hearing. [The defendant in this case] was sentenced by the same judge who accepted his original plea. Sentence was suspended and he was placed on probation. Once that sentence was imposed, Arbuckle no longer applied. [Citations.] (Ibid.)

5. Cumulative Error

Inasmuch as we have found defendants other arguments to be without merit, his cumulative error argument is also without merit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

BOLAND, J.

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^[1] The facts underlying the charged offense are not relevant to the issues on appeal. Those facts and a more detailed recitation of the procedural background are recited in our opinion in the prior appeal. (People v. Freeman (Jan. 11, 2006, B177776) [nonpub. opn.].)

^[2] In the prior appeal, defendants appointed appellate counsel filed an opening brief which raised no issues under People v. Wende (1979) 25 Cal.3d 436, 442 (Wende). After defendant in pro. per. filed a letter brief raising several claims of error, we directed defendants counsel to file a supplemental brief.

^[3] The People argue that defendants contentions are barred by the law of the case doctrine (People v. Boyer (2006) 38 Cal.4th 412, 441) and, alternatively, that defendant waived these contentions by failing to raise them in the prior appeal. (See People v. Senior (1995) 33 Cal.App.4th 531, 538.) To the extent defendants contentions are duplicative of those resolved in the first appeal, we agree with the People and do not discuss those issues again here. To the extent defendant could have, but failed to raise issues in his prior appeal, we address them now to forestall a subsequent claim of ineffective assistance of appellate counsel.