P. v. Wilson

Filed 10/5/06 P. v. Wilson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

THE COURT:^*

Ray Wilson (appellant) appeals from the judgment entered following a finding that appellant was in violation of probation in case No. NA061158. In that case, appellant pleaded no contest on June 29, 2004, to one count of second degree burglary in violation of Penal Code section 459. In accordance with the plea agreement, the court sentenced appellant to the high term of three years for the burglary and five consecutive years for five prison priors pursuant to Penal Code section 667.5. Execution of sentence was suspended, and appellant was placed under terms and conditions of probation for three years, including commitment to a jail term equal to time served. On July 1, 2005, appellant appeared in court for a preliminary hearing in a new case, case No. NA065894. A probation violation hearing was held simultaneously with the preliminary hearing. The court found there was sufficient evidence to hold appellant to answer for grand theft in violation of Penal Code section 487, subdivision (c) and petty theft with a prior in violation of Penal Code section 666. On September 19, 2005, the previously suspended sentence of eight years was executed. Appellant filed a notice of appeal. We appointed counsel to represent appellant in his appeal. After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that he had been unable to find any arguable issues.

On April 28, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On or about June 20, 2006, appellant filed a document, labeled a “writ,” in which he declared he was incarcerated unconstitutionally. Since appellant’s arguments are based entirely on the record, we consider his arguments in the context of his appeal.

The record shows that on June 29, 2004, appellant pleaded no contest to one count of second degree burglary at a proceeding in which he represented himself. When asked if he understood the allegations of five separate prison terms within the meaning of Penal Code section 667.5, subdivision (b), he replied in the affirmative. He said he also understood the burglary charge. He was informed that his plea of “no contest” would result in the conviction of the current offense, and the admission of the prior prison term allegations would result in their being deemed true. Appellant was informed, inter alia, that if he violated probation by committing a new crime he would be sentenced to state prison for the agreed-upon eight years. Appellant said he understood all of the results of pleading “no contest.” As the court found, appellant made a knowing, understanding, intelligent waiver of his rights.

As noted previously, on July 1, 2005, appellant underwent a preliminary hearing that was deemed to be a probation violation hearing as well. The court heard testimony from Officer Donald Kehoe of the Long Beach Police Department, who related that he was posing as an intoxicated transient when he encountered appellant on May 26, 2005. Officer Kehoe had two $20 bills, whose serial numbers had been previously recorded, protruding from his jacket pocket. While Officer Kehoe was seated on a bus bench, appellant took one of the $20 bills from Officer Kehoe’s pocket. Another officer observed appellant take the money and place it in his pants pocket. Appellant testified at the hearing that he found the $20 on the ground after Officer Kehoe and another man left the bus bench. At the close of the hearing, the trial court found there was sufficient evidence to hold appellant to answer for the theft offense. The court also found appellant in violation of probation in his June 2004 case, case No. NA061158.

The matter was sent for sentencing to the court that took appellant’s plea in case No. NA061158. Appellant’s counsel argued vigorously in favor of appellant not receiving the eight-year sentence. Counsel suggested appellant might have a mental handicap and pointed out that appellant was homeless at the time of the theft from Officer Kehoe. Counsel stated that all of appellant’s prior convictions were non-violent commercial burglaries, and appellant had a history of mental illness and of drug use. Counsel also complained that appellant was found to have committed the crime only by a preponderance of the evidence at the preliminary hearing rather than at a trial. Appellant was reporting to his probation officer, he had not violated in any other way, and this was his first violation. Counsel suggested placing appellant in a program and offered testimony on an alternative program, which the court heard and considered.

The trial court agreed that “eight years is a lot of time for the conduct previously and the conduct here,” but appellant had made the bargain. The court also found that, although it sympathized with appellant’s homelessness and mental condition, there had clearly been a violation of probation and there was probable cause for the finding. The court executed the previously suspended sentence, and at the request of defense counsel, the prosecutor moved to dismiss the new case (case No. NA065894) in the interests of justice.

Referring to the theft from Officer Kehoe, appellant’s principal argument in his appeal is that due process was violated because no jury was used to determine whether the evidence proved a crime, and he never admitted committing a crime at the preliminary hearing. The court made a determination of fact on a preponderance of evidence without submitting the charges or evidence to a jury. According to appellant this violated his right to a trial under the Sixth and Fourteenth Amendments to the United States Constitution, and he cites United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 in support of this contention. Appellant also points out that the prosecutor ultimately dismissed the new charges against him, and therefore the court found him in violation of probation for no reason. Appellant further argues that the court’s decision to find him in violation of probation was a breach of contract and a violation of federal law, citing Santobello v. New York (1971) 404 U.S. 257.

Appellant’s arguments regarding the adjudication of his probation violation are without merit. The California Supreme Court has held the preponderance of the evidence standard applies to a probation violation proceeding. (People v. Rodriguez (1990) 51 Cal.3d 437, 446; Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60; People v. Perez (1994) 30 Cal.App.4th 900, 903-904.) A probation revocation hearing is not a trial and serves a different public interest. (Gagnon v. Scarpelli (1973) 411 U.S., 778, 788-789; Lucido v. Superior Court (1990) 51 Cal.3d 335, 347-348; Jones v. Superior Court, supra, at p. 60; People v. Perez, supra, at p. 907.) In Lucido, the Supreme Court held: “The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty. [Citation.]” (Lucido v. Superior Court, supra, at p. 348; see also Pen. Code, § 1203.2; People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) Therefore, the principles discussed in United States v. Booker, supra, 543 U.S. 220; Blakely v. Washington, supra, 542 U.S. 296 and Apprendi v. New Jersey, supra, 530 U.S. 466 have no relevance to appellant’s case. Appellant was not denied his right to a trial under the Sixth and Fourteenth Amendments to the United States Constitution.

As for dismissal of the new charges against appellant, as the record shows, the charges in the new case were dismissed at the request of appellant’s attorney. This action occurred after appellant was found to have violated his probation, and it was of benefit to appellant. It cannot be interpreted as a voiding of the charges that led to his being found in violation of probation in the first place.

In addition, we find no merit in appellant’s argument that his plea agreement was somehow breached. As stated in People v. Walker (1991) 54 Cal.3d 1013, 1024, “[w]hen a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.

‘”[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello v. New York [(1971)] 404 U.S. [257,] 262 . . . .)

The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea (see Boykin v. Alabama (1969) 395 U.S. 238 . . .), but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.’ (People v. Mancheno [(1982)] 32 Cal.3d 855, 860; see also People v. Glennon [(1990)] 225 Cal.App.3d [101,] 104.)” In appellant’s case, the record clearly shows that no promise by the prosecutor was left unfulfilled. Appellant agreed to a suspended sentence of eight years in exchange for a probationary sentence with time served and the dismissal of one count and a special allegation. He was ultimately sentenced in complete accordance with that bargain.

Appellant also contends he received ineffective assistance of counsel because his counsel did not raise a Yurko error at his preliminary hearing. (In re Yurko (1974) 10 Cal.3d 857 (Yurko).) He additionally contends he was not informed that the preliminary hearing was going to involve him being judged guilty of a probation violation. According to appellant, counsel at his pretrial proceedings and at his sentencing hearing were also ineffective because neither counsel moved to set aside the sentence on the ground that he did not admit to the new charges and on the ground that there was a breach of contract. Appellant’s plea agreement did not provide that a violation would occur if he were merely arrested for, rather than convicted of, a crime, and counsel failed to argue this due process violation.

In order to sustain on appeal a claim of ineffective assistance of counsel, a defendant must show counsel’s performance was deficient and it is reasonably probable defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Trial counsel’s performance may be deemed deficient only if “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 424.) Furthermore, a defendant must affirmatively show that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsel’s failings. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma, supra, at pp. 217-218.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.) An appellate court need not address both prongs of the test before rejecting a claim of ineffective assistance of counsel. (Strickland v. Washington, supra, at p. 697.)

Appellant’s claims of ineffective assistance of counsel are without merit. First, there was no Yurko error. “In In re Yurko (1974) 10 Cal.3d 857, 861-865 . . . , our Supreme Court held trial courts are constitutionally required to [expressly] advise defendants who intend to admit prior convictions that they have the right to a jury trial on the prior, the right to confront and cross-examine witnesses, and the right against self-incrimination (Boykin/Tahl rights). (Boykin v. Alabama (1969) 395 U.S. 238 . . . ; In re Tahl (1969) 1 Cal.3d 122 . . . .) The Supreme Court later held that ‘Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.’ (People v. Howard (1992) 1 Cal.4th 1132, 1175 . . . .)” (People v. Campbell (1999) 76 Cal.App.4th 305, 309-310.) The record of the taking of appellant’s plea shows that appellant was given the appropriate admonitions and that he waived each of his rights with respect to both the substantive crimes and the prison-prior allegations. We also reject the rest of appellant’s claims of ineffective assistance of trial counsel. There is no merit to appellant’s argument that the enhancements had to be stricken because appellant was not asked by the court if he committed a serious felony and appellant made no admissions of serious felonies. The enhancements appellant suffered were not for committing serious felonies but were based on having suffered prior prison terms pursuant to Penal Code section 667.5. As for his probation-violation hearing being a surprise, appellant was represented by counsel at the preliminary hearing/probation violation hearing, and the court clearly stated it was going to conduct both proceedings simultaneously. Trial counsel was not ineffective for failing to move to set aside the sentence on the ground that appellant did not admit to the new charges and on the ground that there was a breach of contract. There is no copy of a plea agreement signed by appellant in the record, but a summary of the conditions by the trial court indicates that one of the terms of his probation was to obey all laws. Counsel is not required to make futile or frivolous objections. (People v. Price (1991) 1 Cal.4th 324, 386-387.)

Finally, appellant argues that his appellate counsel was ineffective because counsel refused to move to have appellant’s priors dismissed and claimed there were no arguments to be made. This left to appellant the task of raising the issues that he claims are shown clearly in the court record.

Appellate counsel was not ineffective. As counsel explained in a letter to appellant, counsel could not move to have appellant’s priors dismissed, since the trial court no longer had jurisdiction to modify appellant’s sentence. Counsel was not ineffective for failing to raise any arguments on appeal either. We have examined the entire record and are satisfied that appellant’s counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441-442.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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^* BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.