P. v. Varnado

Filed 4/5/07 P. v. Varnado CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Patricia M. Schnegg, Judge. Dismissed.

PETITION for writ of Habeas Corpus. Writ denied.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Terrell Varnado (Varnado) appeals the judgment entered following his plea of no contest to inflicting corporal injury on a spouse or cohabitant (Pen. Code, 273.5, subd. (a))^[1]and his admission he previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Pursuant to a negotiated plea agreement, the trial court sentenced Varnado to six years in state prison. We dismiss the appeal as inoperative for failure to obtain a certificate of probable cause.

Varnados petition for writ of habeas corpus, which is being considered concurrently with this appeal, is denied as the contentions raised fail to warrant relief.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[2]

On October 15, 2005, Karen Smith (Smith) lived with her husband, Terrell Varnado (Varnado), and her grandson at 450 East 81st Street in Los Angeles. At approximately 7:30 that morning, Varnado accused Smith of taking some of his money. Smith told Varnado she did not have the money and he should look around the house for it. The altercation escalated and Varnado hit Smith in the face seven or eight times with his fists, dislocating her jaw and breaking her nose. When Smith then went into the bathroom to try to wash the blood from her face, Varnado followed her and stood in the doorway so she could not leave. Varnado told Smith, if she did not come up with his money, the only way [Smith would] get out of the bathroom [was] the paramedics picking her up bloody in the tub.

While Varnado and Smith were still in the bathroom, the telephone rang. Smith told her grandson, who had been standing there watching the entire thing, to run and answer it. As Smiths grandson ran to the telephone, Varnado followed to prevent him from answering it. At that point, Smith left the bathroom, ran from the house to a nearby pay telephone and called police. Police officers and paramedics arrived a short time later.

2. Procedural History.

In an amended information filed May 11, 2006, Varnado was charged with one count of willfully inflicting corporal injury on a spouse or cohabitant ( 273.5, subd. (a)), during the commission of which he personally inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)), and willfully threatening to commit a crime which would result in death or great bodily injury to another person ( 422), during which he inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)). It was further alleged Varnado previously had been convicted of three serious or violent felonies within the meaning of section 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes law and, as to count two, he previously had been convicted of three serious or violent felonies pursuant to section 667, subdivision (a)(1).

At proceedings held on May 4, 2006, Varnado made a motion to replace his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After holding a hearing outside the presence of all prosecution personnel, the trial court denied the motion.

A jury trial was commenced on May 24, 2006 and a panel of 12 jurors and two alternates were sworn and admonished. However, on May 25, 2006, Varnado indicated he wished to change his plea and accept the prosecutors offer of a six-year prison sentence. After waiving his right to a jury or court trial, to confront and cross-examine the witnesses against him, to subpoena witnesses and present evidence in his defense, and his privilege against self-incrimination, Varnado pleaded no contest to willfully inflicting corporal injury on a spouse or cohabitant and admitted having suffered one prior serious or violent felony conviction. On the Peoples motion, all remaining counts and allegations were dismissed.

At the same May 25th proceedings, the trial court sentenced Varnado to the middle term of three years in prison for his conviction of willfully inflicting corporal injury on a spouse or cohabitant, then doubled the term to six years pursuant to the Three Strikes law. The trial court awarded Varnado 165 days of presentence custody credit consisting of 113 days actually served and 52 days of good time/work time.

On July 5, 2006, Varnado timely filed a notice of appeal and requested from the trial court a certificate of probable cause. In denying the certificate, the trial court noted, [T]his case was filed as a three strikes case. [Varnado] had substantial exposure (approx. 40 years) if he was unsuccessful at trial. . . . [Varnado] decided to accept the plea agreement offered by the People. Both the terms of the plea agreement (6 years in state prison) and [Varnados] Constitutional rights were fully explained to him at the time of the change of plea. A review of the transcript of the plea reveals that the court repeatedly asked [Varnado] whether he wanted to go forward with the plea disposition. In response [Varnado] indicated that . . . he had no choice. Upon further inquiry from the court concerning the voluntariness of his change of plea [Varnado] explained: Im taking the six years. Id rather take the six years than try going to trial and losing and wind up in prison for the rest of my life. . . . The court stated: It sounds like youre pleading because right now you think its in your best interest. [Varnado] responded: Thats all I got, in my best interest. [] The court and the prosecutor extensively questioned [Varnado] at the time the plea was taken and from the record in this case the court concludes that [Varnado] knowingly, intelligently and voluntarily entered into the change of plea. Moreover, the court finds that there is no merit to the contention that [Varnado] was provided ineffective assistance of counsel.

We appointed counsel to represent Varnado on appeal.

CONTENTIONS

After appointed appellate counsel sought and obtained an order from the trial court increasing Varnados total presentence custody credits from 165 to 169 days, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed January 3, 2007, the clerk of this court advised Varnado to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. On January 26, 2007, this court granted Varnados request for an extension of time to March 1, 2007 to submit his contentions.

On February 26, 2007, Varnado filed a supplemental brief in which he asserts, by sentencing him pursuant to Californias determinate sentencing law, the trial court violated the rules of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Cunningham v. California, 549 U.S. __ [127 S.Ct. 856] (Cunningham).

On February 2, 2007, Varnado filed a petition for writ of habeas corpus in which he contends: (1) his trial counsel was ineffective; (2) the prosecutor committed misconduct; (3) the trial court erred when it denied his Marsden motion; (4) the trial court unlawfully sentenced him pursuant to the Three Strikes law; and (5) limitations placed on the amount of custody credit he may receive violate the equal protection clause.

DISCUSSION

1. Varnados contention on appeal fails to demonstrate reversible error.

a. The United States Supreme Courts decisions in Apprendi and Cunningham have no application to this case.

In his supplemental brief, Varnado asserts the trial court violated the rules of Apprendi and Cunningham when it sentenced him pursuant to Californias determinate sentencing law. The contention is without merit.

In Cunningham, the court recognized that Californias determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence. . . . [] As this courts decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum [or middle term,] based on a fact, other than a prior conviction not found by a jury [beyond a reasonable doubt] or admitted by the defendant. [Citations.] (Cunningham, supra, 127 S.Ct. at p. 860.)

In the present case, the trial court did not impose an upper term. The court sentenced Varnado to the middle term of three years in prison, then properly doubled the term pursuant to the Three Strikes law based on a prior conviction which Varnado admitted.

b. Varnado failed to obtain a certificate of probable cause.

When a defendant enters a plea of guilty or no contest, he may not bring an appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562.) Since he failed to obtain a certificate of probable cause, Varnados contention regarding the legality of the negotiated sentence is barred. (In re Chavez (2003) 30 Cal.4th 643, 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097; 1237.5.) Even if this court were to construe Varnados supplemental opening brief as a petition for writ of mandate challenging the trial courts denial of his request for a certificate of probable cause (but see People v. Castelan (1995) 32 Cal.App.4th 1185, 1187-1188), Varnado has failed to demonstrate any cognizable error.

2. Varnados petition for writ of habeas corpus fails to establish error.

a. Varnados counsel was not ineffective.

Varnado claims his trial counsel was ineffective in that she failed to seek discovery of exculpatory evidence.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

On the record before us, it is unclear whether defense counsel sought discovery of exculpatory evidence or whether such evidence even existed. When seeking a writ of habeas corpus, it is the obligation of the defendant to provide a record adequate for review. (Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187.) A defendants statement or assertion, without some corroborating evidence, is insufficient to support relief. (In re Alvernaz (1992) 2 Cal.4th 924, 945.) Since Varnado has not provided this court with any evidence his counsel was deficient by failing to seek discovery, or that he suffered any prejudice as a result of such deficiency, he has failed to establish his counsel was ineffective. (See People v. Holt, supra, 15 Cal.4th at p. 703.)

b. There is no evidence the prosecutor committed misconduct.

Varnado asserts the prosecutor committed misconduct when she failed to disclose to defense counsel all discoverable materials, including witnesses, notes, or such other things on hand. Varnado further asserts the prosecutor was successful in controlling defense counsel, that defense counsel was puppeted [sic] through prosecutorial manipulation, and that the prosecutor employed methods calculated to produce a wrongful conviction . . . .

With regard to Varnados claim the prosecutor failed to disclose discoverable materials, the California Supreme Court has imposed a duty upon prosecutors to disclose substantial material evidence favorable to the defense without request. (People v. Kasim (1997) 56 Cal.App.4th 1360, 1379.) Evidence is material in this context only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (Ibid.)

Here, Varnado has not indicated what material exculpatory evidence he believes the prosecutor did not disclose. On the record before us, it does not appear the prosecutor withheld the names of witnesses or other materials necessary to Varnados defense.

Varnados claims the prosecutor controlled defense counsel and employed methods calculated to produce a wrongful conviction . . . are completely without merit. Contrary to having been controlled or manipulated by the prosecutor, our review of the record indicates Varnados counsel actively and competently pursued Varnados defense. Nothing in the record before us indicates the prosecutor sought to have Varnado wrongfully convicted of the crimes with which he was charged.

c. The trial court properly exercised its discretion when it denied Varnados Marsden motion.

Varnado contends he had a conflict of interest with his counsel from as early . . . as the initial stages of his case. He further asserts he was prohibited from demonstrating there had been a total breakdown in the [a]ttorney-[c]lient relationship.

A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation] When the defendant seeks to remove appointed counsel the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsels inadequacy [Citation.] The trial courts ruling is reviewed for abuse of discretion. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 431)

On May 4, 2006, the trial court held a Marsden hearing during which Varnado was given the opportunity to voice his complaints regarding his counsels performance, including that he believed counsel had continued his case against his wishes. When the trial court explained to Varnado that his case was proceeding within statutory time limits, Varnado then indicated he wished to have a different attorney because [he did not] approve of [the one who had been appointed to represent him].

Following a lengthy discussion between the trial court, Varnado and appointed counsel, the trial court properly exercised its discretion by denying Varnados Marsden motion. The court appropriately concluded counsel had done a lot of work on Varnados case and Varnados expectation that, if his counsel had been performing adequately he would be out on the street, was unreasonable.

d. The trial court properly sentenced Varnado pursuant to the Three Strikes law.

Relying on section 667.5, Varnado argues his 1992 robbery conviction was too remote to be used as a strike prior. Varnados reliance on section 667.5 is misplaced. That section provides for the enhancement of a prison sentence for prior prison sentences served. Subdivision (a) of that section provides, when both the present and prior convictions are for violent felonies, an enhancement of three years shall be imposed for each prior prison term served. However, the subdivision further indicates that no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of prison custody and the commission of an offense which result[ed] in a felony conviction.

In contrast, the applicable portion of the Three Strikes law, subdivision (c)(3) of section 667, provides: The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence. Accordingly, the trial court properly relied on Varnados 1992 robbery conviction to double his sentence under the Three Strikes law.

e. Limitation of Varnados custody credits does not violate principles of equal protection.

Varnado contends section 667, subdivision (c)(5), which limits credits available to a defendant sentenced under the Three Strikes law, violates the equal protection clauses of the state and federal Constitutions.

The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classification of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished. [Citation.] (People v. Spears (1995) 40 Cal.App.4th 1683, 1687.)

Varnado is not similarly situated to defendants who have no prior strike convictions. In enacting the Three Strikes law, the Legislature specifically stated its intent was to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses. ( 667, subd. (b).) It is clear the Legislature intended to set [Varnado] and other recidivists with prior strike convictions apart from first time offenders and those with less serious criminal histories; it is equally clear it did so with a legitimate objective in mind. (People v. Spears, supra, 40 Cal.App.4th at p. 1688.) Accordingly, the limitation placed by the Three Strikes law on Varnados ability to accumulate sentencing credits violates neither the state nor the federal Constitutions equal protection clause.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Varnados counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Varnado pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed as inoperative. (In re Chavez, supra, 30 Cal.4th at pp. 649-651; People v. Mendez, supra, 19 Cal.4th at pp. 1094-1099; 1237.5.)

PETITION FOR WRIT OF HABEAS CORPUS

Varnados petition for writ of habeas corpus fails to establish any error. Accordingly, the petition will be denied.

DISPOSITION

The appeal is dismissed.

The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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

^[2] The facts have been taken from the transcript of the preliminary hearing.