P. v. Williams
Filed 4/13/06 P. v. Williams CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. CURTIS WINSTON WILLIAMS, Defendant and Appellant. | B184356 (Los Angeles County Super. Ct. No. BA259312 & BA256860) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael S. Luros, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Curtis WinstonWilliams appeals the judgment (order revoking probation) entered following his conviction, based on a plea of no contest, to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in case No. BA26860, and sale of a controlled substance, possession for sale of cocaine base and the admission of a prior narcotics related conviction (Health & Saf. Code, §§ 11352, subd. (a), 11351.5, 11370.2, subd. (a)) in case No. BA259312. The trial court sentenced Williams to a term of six years in state prison.
BACKGROUND
In BA256860, on December 11, 2003, Williams pleaded no contest to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), and was granted Proposition 36 probation.
In BA259312, on August 4, 2004, Williams pleaded no contest to sale of a controlled substance, possession for sale of cocaine base and admitted a prior narcotics related conviction. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5, 11370.2, subd. (a).) The trial court suspended a six-year prison term and granted Williams probation. The trial court also terminated Williams's Proposition 36 probation in BA256860 and granted Williams probation in that case with a suspended two year prison term.
On December 22, 2004, the trial court revoked Williams' probation. On March 3, 2005, the trial court conducted a formal probation violation hearing at which the probation officer testified Williams failed to report after September 17, 2004. The probation officer also testified Williams was convicted of violating Health and Safety Code section 11364 on January 10, 2005.
In BA259312, the trial court found Williams in violation of probation and imposed the previously suspended six-year term. In BA256860, Williams waived a probation violation hearing. The trial court imposed the previously suspended two-year term and ordered it to run concurrently with the six-year term in BA259312.
CONTENTIONS
We appointed counsel to represent Williams on this appeal. After examination of the record, counsel sought and obtained correction of the presentence custody credit awarded by the trial court, then filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
Williams has filed a supplemental opening brief in which he contends his no contest plea should be set aside, defense counsel rendered ineffective assistance, the evidence does not support the conviction in BA259312 or the finding he violated probation, and the allegations of case No. BA259312 placed him in double jeopardy.
DISCUSSION
1. Williams fails to demonstrate his no contest plea should be set aside.
Williams contends his no contest plea in case No. BA259312 should be set aside because he was in fear for his mother's health and he entered the plea only because he had one year of custody credit.
This claim is not cognizable on an appeal from an order revoking probation. In any event, to establish good cause to withdraw a no contest plea, the defendant must provide clear and convincing evidence that his free judgment was overcome. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Urfer (1979) 94 Cal.App.3d 887, 892; Pen. Code, § 1018.) Neither of Williams's assertions affords a basis upon which to set aside the no contest plea.
2. Williams fails to demonstrate that defense counsel provided ineffective assistance.
Williams claims defense counsel failed to produce any evidence of mitigating circumstances at sentencing and failed to obtain Pitchess discovery (Pitchess v. Superior Court (1974) 11 Cal.3d 531) with respect to two of the police officers involved in his arrest in BA259312.
Williams fails to suggest what mitigating evidence defense counsel might have offered. Thus, no ineffective assistance of counsel appears. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
Regarding the failure to seek Pitchess discovery in pre-trial proceedings, this issue is not cognizable on an appeal from an order revoking probation. However, the record reveals the parties were litigating a Pitchess discovery matter when Williams entered his no contest plea. Such a plea waives any error in pre-trial discovery proceedings. (People v. Hunter (2002) 100 Cal.App.4th 37, 42; People v. Castro (1974) 42 Cal.App.3d 960, 963 [denial of motion to disclose informant not reviewable after guilty plea].) Accordingly, the claim of ineffective assistance of counsel fails.
3. Williams's assertions related to the sufficiency of the evidence uniformly fail.
Williams contends the evidence does not support the conviction in BA259312 or the finding he violated probation. Specifically, Williams questions why so many Los Angeles Police Department officers were involved in his arrest in BA259312 and suggests the evidence related to the â€
