P. v. Hammock

Filed 8/31/07 P. v. Hammock CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant appeals from a judgment following her plea of no contest and imposition of sentence. Her counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that she can file a supplemental brief with the court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

An information filed on July 10, 2006, charged defendant in count I with elder abuse (Pen. Code,[1]  368, subd. (e)) and in count II with grand theft ( 487, subd. (a)). The information further alleged that defendant suffered a prior prison conviction pursuant to section 667.5, subdivision (b).

On August 7, 2006, defendant entered a plea of no contest to count I, felony elder abuse by theft. Under the terms of the plea agreement, the maximum exposure was the midterm of three years. The district attorney dismissed the remaining count and special allegation.

Since this appeal is from a plea of no contest, we will not state in detail the facts.[2]

Defendant worked through an agency as a live-in care provider for Stanley C., a 54-year-old, mobility impaired dependant adult who required 24-hour care. When Stanley C.s contract with the agency expired, he hired defendant to continue to provide live-in care. Defendant and her boyfriend, Sterling Stryker, moved into Stanley C.s house. Stanley C. gave defendant one of his credit cards to purchase some fabric for his house, but later learned that defendant used the card to purchase jewelry and to pay for her personal cellular phone bill. Stanley C. informed the Sonoma County Sheriffs office that defendant had forged a number of his checks, had started an American Express credit card account in his name, and had opened a business checking account in the name of Stanley C.s deceased wife at a bank without his permission. Some of the forged checks had been deposited into the business account. Defendant was taken into custody on an unrelated warrant and while in custody admitted that she had stolen a number of checks from Stanley C.

Two weeks after defendants plea of no contest, the trial court held a Marsden[3]hearing at defendants request. During the in camera hearing, defendant indicated to the trial court that her attorney did not believe in her innocence and she had a right to an attorney that is loyal and that believes in me and will look at all of the evidence and help me to prove my innocence. Defendant also stated that she had been coerced by her attorney into pleading no contest. The trial court found that defendants counsel had acted competently and there were no grounds for the Marsden motion. At the conclusion of the hearing, the court requested that different counsel, Martin Woods, appear on the following day to address defendants request to withdraw her plea. Mr. Woods was appointed for the limited purpose of determining whether there was a valid basis to move to withdraw the plea. Mr. Woods subsequently appeared and reported to the court that although defendant was medicated at the time of her plea, she told him the medication did not interfere with her ability to understand the proceedings. As a result, Mr. Woods concluded that there were no grounds to file a motion to withdraw defendants plea.

Upon stipulation by the parties that defendant was addicted to narcotics, the court suspended execution of sentence and instituted proceedings pursuant to Welfare and Institutions Code section 3051. Defendant was ordered to the California Rehabilitation Center (CRC) for a period not to exceed three years. Defendant was awarded a total of 301 days of custody credit, ordered to pay a $600 restitution fine ( 1202.4, subd. (a)(3)(B)), and a $600 parole revocation fine was suspended pending completion of parole ( 1202.45).

This appeal followed challenging the sentence and the failure to conduct an adequate Marsden hearing.

DISCUSSION

When a defendant has entered a plea of no contest, he or she may appeal either to review the postplea proceedings not affecting the pleas validity or to review the denial of a motion to suppress evidence. (See Cal. Rules of Court, rule 30(b)(4).) In order to pursue an appeal on other grounds going to the legality of the proceedings, a defendant who has pled guilty must obtain from the trial court a certificate of probable cause. ( 1237.5; Cal. Rules of Court, rule 30(b)(1)(2).) Matters occurring after the entry of a plea, such as a motion to withdraw the plea, may be reviewed without a certificate of probable cause but only if the facts underlying the motion arose after the plea was made. (People v. Osorio (1987) 194 Cal.App.3d 183, 187.) Defendant has not obtained a certificate of probable clause and in the absence of a certificate the denial of the Marsden motion is not cognizable on appeal because the facts underlying the motion arose before the plea was entered and relate to the validity of the plea.

Even assuming the Marsden motion is cognizable on appeal, we nonetheless see no abuse of discretion in the courts denial of defendants motion. Defendants counsel, Ms. Thistlewaite, responded that although defendant had been out of custody and had been requested again and again to come in for an interview, she never came in. It was not until defendant was remanded into custody on a violation of her supervised OR that Ms. Thistlewaite was able to interview her. Ms. Thistlewaite was also able to obtain an agreement from the deputy district attorney to release defendant on another supervised OR in exchange for a waiver of preliminary hearing. Ms. Thistlewaite interviewed defendant in her office along with a potential witness. She conveyed the offer to defendant, and defendant informed her at court that she had changed her mind and was willing to take it. When defendant informed Ms. Thistlewaite that she wanted to withdraw her plea, counsel put the matter on calendar and notified Mr. Woods to be in court so that he could be appointed to advise defendant. The trial court concluded there were no grounds to grant the Marsden motion, and we cannot conclude the trial court abused its discretion.

Regarding the [s]entencing issues asserted in defendants notice of appeal, no certificate of probable cause is required. We have reviewed the entire record and find no meritorious sentencing issues that would require reversal of the judgment. The defendant was represented by counsel throughout the proceedings. The court imposed a sentence that did not exceed the top that was promised to the defendant. The court awarded proper presentence credits. (See  2900.5, 2933.1.) The restitution fines the court imposed were also appropriate.

Based upon our review of the entire record, we find there are no arguable issues that require further briefing.

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Swager, J.

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[1] All statutory references are to the Penal Code unless otherwise noted.

[2] The facts are taken from the felony presentence report.

[3]People v. Marsden (1970) 2 Cal.3d 118.