P. v. Fuse

Filed 6/14/06 P. v. Fuse CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jon Nick Kapetan and John Vogt, Judges.^†

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

On July 7, 2005, appellant Rodney Leon Fuse pled guilty to one count of possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). The prosecutor moved without objection for amendment to the allegation to include a prior serious felony conviction within the three strikes law which Fuse admitted as part of the plea agreement. Under the agreement, Fuse would receive the two-year mitigated term with a lid of four years on his sentence and the right at sentencing to request that the trial court exercise its discretion to strike the prior serious felony conviction. Pursuant to the plea agreement, three other counts and allegations against a codefendant were dismissed.

On August 3, 2005, the date set for sentencing, Fuse told the court that he wished to withdraw his plea. The court appointed conflict counsel to investigate whether there were grounds for Fuse to do so. On September 22, 2005, counsel reported that he could find no basis for Fuse to withdraw his plea. On September 27, 2005, the trial court declined to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike Fuse's prior serious felony conviction. The court sentenced Fuse to the two-year mitigated term which it doubled pursuant to the three strikes law. The court imposed a restitution fine and granted Fuse applicable custody credits.

Fuse's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Fuse was advised he could file his own brief with this court. By letter on January 23, 2006, we invited Fuse to submit additional briefing.

Fuse replied with a six-page letter brief asserting that the trial court violated the terms of the plea agreement in sentencing him to prison for four years because the negotiated plea was for only two years. Fuse argues that the violation of the plea agreement was due to ineffective assistance of trial counsel, that it violated due process of law, and that his offense was a victimless crime. We initially note that Fuse has failed to obtain a certificate of probable cause, so he may not attack the validity of his plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

After reviewing the record, we have further determined that Fuse's contentions fail on their merits. It is clear Fuse was notified prior to entering his change of plea he would receive the two-year mitigated term for his guilty plea with a four-year lid and the right to request that the trial court consider whether to strike the prior serious felony allegation at sentencing. The court considered and rejected Fuse's request to dismiss the prior serious felony allegation. The court sentenced him to the two-year mitigated term which it doubled to four years pursuant to the three strikes law. Fuse received a sentence no greater than the four-year lid to which he agreed prior to changing his plea.^[1]

Fuse has failed to demonstrate ineffective assistance of trial counsel.^[2] Fuse has failed to show that he was denied due process of law.

When Fuse admitted he violated Health and Safety Code section 11370.1, subdivision (a), the People had nothing more to prove. A guilty plea is, for most purposes, the legal equivalent of a jury's guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict. The plea is deemed to constitute an admission of every element of the offense charged. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748; People v. Suite (1980) 101 Cal.App.3d 680, 689.) We thus make every presumption in favor of the judgment. The Legislature has made the determination that a violation of this provision of the Health and Safety Code is not a victimless crime.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Apartment Manager Lawyers.

^*Before Harris, Acting P.J., Dawson, J., and Gomes, J.

^†Judge Kapetan took appellant's guilty plea. Judge Vogt presided over appellant's hearing to withdraw his plea and his sentencing.

^[1] Indeed, the basic terms of the plea agreement appear in a change of plea waiver form executed by Fuse.

^[2] The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)