P. v. Powers

Filed 6/5/07 P. v. Powers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On September 18, 2006, appellant, Brian Daniel Powers, pled no contest to a felony allegation in a criminal complaint that he feloniously interfered with an executive officer in the performance of his duties (Pen. Code,  69).^[1]

Prior to taking appellants change of plea, the court advised appellant of the consequences of his plea, including the fact he faced a maximum prison term of three years and that he would have to pay a restitution fine. The court advised appellant of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant waived these rights as well as his right to a preliminary hearing and a probation report prior to sentencing. The parties stipulated there was a factual basis for appellants plea.^[2]

The court accepted appellants plea.^[3] The court suspended imposition of sentence and placed appellant on felony probation for three years and imposed a restitution fine as well as other fines and penalty fees. Appellant obtained a certificate of probable cause and filed a timely notice of appeal.

Appellants 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. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised he could file his own brief with this court. On January 22, 2007, we invited appellant to submit a letter stating any grounds on appeal he wished this court to consider.

DISCUSSION

Appellant replied with a four-page letter asserting that he had hoped to file a motion to withdraw his plea because he was not thinking clearly when he entered his plea. There is nothing in the record to indicate that appellants change of plea was not knowing and intelligent.

Appellant asserts that the police report was false and that there would be false testimony at trial from a deputy working at the jail. These matters are outside the record on appeal and are unavailable for our review. Appellant presents a very lengthy discussion of his recollection of the facts surrounding his arrest. Appellant denies doing anything prior to his arrest to resist the arresting officer and asserts that the officer hit him 20 times in the face during their encounter. Appellant denied making any threats to the officer. Appellants counsel, however, conceded there was a factual basis for appellants plea. Appellants factual account in his letter conflicts with the factual basis for his plea given during the change of plea hearing. When the factual basis for the plea was recited for the record, appellant did not object.

A guilty plea is, for most purposes, the legal equivalent of a jurys 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.) A plea of nolo contendere is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)

When a defendant enters a plea of guilty or no contest, he or she is admitting the sufficiency of the evidence for the offense. Issues going to guilt or innocence are removed from consideration upon entry of the plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Our Supreme Court observed long ago that when a defendant waives the right to a jury trial, he or she is deemed to have consented to a trial of all the issues in the case before the court sitting without a jury. (People v. Berkutko (1969) 71 Cal.2d 84, 94.)

The trial court carefully advised appellant of the consequences of his plea and his constitutional rights. The parties stipulated to a factual basis for appellants plea. We find no error in the trial courts advisement of rights, the appellants waiver of rights and his admission of the allegation, or in the trial courts imposition of probation. There is nothing in the record that would constitute grounds for appellant to withdraw his plea.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual arguments.

DISPOSITION

The judgment is affirmed.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^*Before Harris, Acting P.J., Wiseman, J., and Kane, J.

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

^[2] On July 7, 2006, a Modesto police officer was called to a Baskin Robins store. Appellant stood just outside the store surrounded by other people. Appellant was challenging them to fight. The officer arrested appellant, who stiffened his arms as the officer attempted to handcuff him. Inside the police car, appellant challenged the officer to fight.

Appellant repeatedly told the officer he was going to kill him. Appellants initial resistance to the officer applying handcuffs interfered with the officers performance of his duty and constitutes a violation of section 69. (See In re Manuel G. (1997) 16 Cal.4th 805, 814-815.)

^[3] In exchange for appellants plea, the court dismissed a misdemeanor possession of marijuana allegation and it struck two prior prison term enhancements alleged in the complaint.