Filed 11/19/18 P. v. Mason CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROBERT MASON, Defendant and Appellant.

H045405 (San Benito County Super. Ct. No. CR1701294)

Defendant Joseph Robert Mason pleaded no contest to one felony count of elder abuse (Pen. Code, § 368, subd. (b)(1))[1] and one misdemeanor count of inflicting corporal injury on a child (§ 273d, subd. (a)) pursuant to a plea agreement. The trial court suspended sentence and placed Mason on formal probation for three years, conditioned on a 244‑day jail term, which was deemed served.

We appointed counsel to represent Mason in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified Mason of his right to submit written argument in his own behalf within 30 days. On Mason’s request, we granted an extension of time to file his response. On September 7, 2018, Mason filed a “supplemental brief” arguing that: (1) he was denied his right to a speedy trial after the trial court ignored his attempts to withdraw his waiver of time; and (2) he was never made aware of the specific charges on which he was held.

Concurrent with his brief on appeal, Mason filed a petition for writ of habeas corpus, which we have ordered considered with the appeal. In his writ petition, Mason renews his claim that his speedy trial rights were violated and contends that he was deprived of the effective assistance of counsel.

For the reasons expressed herein, we affirm the judgment. By separate order, we deny the petition for writ of habeas corpus in case No. H046179.

I. Factual and Procedural Background[2]

On August 21, 2017, San Benito County Deputy Sheriff Oday[3] responded to the San Benito County courthouse regarding a letter which had been mailed to Judge Steven R. Sanders. The letter was from Mason’s mother, Janeice VanLoon, and described how Mason had injured and threatened her. VanLoon also wrote that Mason was on probation, abused alcohol, and has outstanding warrants in Oregon. Oday was unable to confirm that Mason was subject to any arrest warrants in Oregon but discovered that Mason had been involved in a DUI accident in San Juan Bautista. Oday also learned that police had responded to Mason’s residence on two separate occasions.[4]

On August 22, 2017, Oday met with VanLoon, age 70, who confirmed that she had sent the letter to Judge Sanders. She told Oday she lived with Mason and Mason’s 13-year-old daughter, B.M. (daughter). VanLoon said Mason was a “violent alcoholic and had a history of drug and alcohol abuse.” He was “verbally abusive and occasionally violent” with her, but “only verbally abusive” to daughter. VanLoon feared for daughter’s safety but was afraid to contact law enforcement because Mason threatened to kill her if she did. VanLoon told Oday that Mason had knocked her to the ground on one occasion, bruising her.

On that same day, San Benito Deputy Sheriff Diller responded to Mason’s home as he was reportedly “intoxicated, throwing things and acting violent towards family members.” Diller was informed by dispatch that VanLoon and daughter were in a vehicle outside the residence and daughter had cuts on her arm and under her eye.

Diller contacted VanLoon and daughter, observing that daughter had the lacerations described by dispatch. Daughter told him that she was injured when Mason threw a broken lightbulb at her. Diller and others went inside the residence but could not locate Mason. VanLoon told Diller there was a gate behind the residence and Mason may have gone through there. After going through the gate, Diller eventually located Mason hiding inside a large pipe on the adjacent property.

VanLoon told Diller that she and daughter were preparing dinner when Mason got angry with daughter for not helping make dinner.[5] Mason picked up a glass lamp and began swinging it around, breaking the bulb. VanLoon went out the door and called 911.

Daughter told Diller that, after VanLoon left, she tried to calm Mason down. She said it was not uncommon for him to “have fits of rage.” Mason only got angrier, however, and threw the broken bulb at her. She was able to partially deflect the bulb with her arm, but was cut on her forearm and by her right eye. She then ran outside to join her grandmother.

Mason was charged by complaint with one felony count of making criminal threats (§ 422, subd. (a), count 1), two felony counts of elder abuse (§ 368, subd. (b)(1), counts 2 & 5), two felony counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 3 & 4), one felony count of inflicting corporal injury on a child (§ 273d, subd. (a), count 6), and one felony count of child abuse (§ 273a, subd. (a), count 7).

Pursuant to a plea agreement, Mason pleaded no contest to count 5 (felony elder abuse) and count 6 (misdemeanor inflicting corporal injury on a child),[6] in exchange for a sentence of felony probation with credit for time served. The remaining counts would be dismissed at sentencing.

At the December 28, 2017 sentencing hearing, the trial court ordered that imposition of sentence be suspended and imposed three years of formal probation on condition that Mason serve 244 days in county jail with 244 days credit for time served. Mason was further ordered to pay various fines and fees, and the remaining charges were dismissed on the People’s motion.

II. Discussion

In his letter brief, Mason argues that his speedy trial rights were violated by trial counsel who did not “honor [his] wishes” to withdraw his waiver of time at the October 10, 2017 hearing. He further argues that counsel failed to make him aware of the charges he was facing and never showed him a copy of the complaint.

A. Speedy trial rights

Section 1237.5 provides that “a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 766; § 1237.5, subd. (b).) “Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379.)

Here, Mason directly challenges the validity of the plea, and absent a certificate of probable cause, which he failed to secure, his claim is barred. Mason’s claim that his right to a speedy trial was violated is also foreclosed by his no contest plea. “[A] claimed speedy trial violation, statutory or constitutional, does not survive a guilty plea to either a misdemeanor or a felony.” (People v. Egbert (1997) 59 Cal.App.4th 503, 515.)

B. Ineffective assistance of counsel

Mason’s claim that his trial counsel failed to apprise him of the charges brought against him is not supported by the record. At no time during the December 1, 2017 hearing at which he entered his plea did Mason indicate to the trial judge that he was unaware of the charges that were set forth in the complaint. He did not mention, as he now claims, that trial counsel had not shown him a copy of the complaint or discussed the case with him. Nothing in the record raises a doubt that Mason understood the charges against him, knowingly waived his rights and freely entered his plea. (People v. Castrillon (1991) 227 Cal.App.3d 718, 722-723.) To the extent Mason’s claim is one of ineffective assistance of counsel, it is based on matters outside the record (i.e., counsel’s attorney‑client privileged discussions with Mason) and is more appropriately raised by writ of habeas corpus. (People v. Salcido (2008) 44 Cal.4th 93, 172.)

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.

III. Disposition

The judgment is affirmed. We dispose of defendant’s related petition for writ of habeas corpus in case No. H046179 by separate order filed today.