P. v. Booker

Filed 5/3/07 P. v. Booker CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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Pursuant to a negotiated plea agreement, defendant Lonnie Henry Booker, Jr., pleaded no contest to one count of transportation of a controlled substance and admitted special allegations including a prior strike and two prior prison terms in exchange for dismissal of related charges and allegations, as well as revocation of probation in a prior case and dismissal of that case without execution of sentence. Consistent with the plea agreement, the trial court sentenced defendant to 12 years in state prison.

On appeal, defendant contends the trial court erred by failing to conduct a sufficient and meaningful inquiry into his desire to withdraw his plea and his dissatisfaction with his attorney. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants negotiated plea agreement involved two underlying cases.

Case No. 04F6581

In 2004, defendant, a passenger in a car driven by another individual, fled the scene of a traffic stop, leaving 3.2 grams of methamphetamine secreted in the car. Defendant was later apprehended and charged in case No. 04F6581 with possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)‑‑count 1), transportation of a controlled substance (id.,  11379, subd. (a)‑‑count 2) and resisting or obstructing a public officer (Pen. Code,  148, subd. (a)(1)‑‑count 3). As to counts 1 and 2, it was alleged that defendant had had a prior strike for burglary (id.,  1170.12) and served four prior prison terms (id.,  667.5, subd. (b)).

Pursuant to a negotiated plea agreement, defendant pleaded guilty to counts 2 and 3, admitted the four prison priors, and agreed to an eight-year state prison term as to count 2 and the prison priors, in exchange for dismissal of the remaining count and the prior strike allegation, suspension of execution of the sentence and placement on probation. The court imposed a sentence consistent with the terms of that plea agreement, suspending execution of the sentence and placing defendant on formal probation for three years pursuant to terms and conditions which included a requirement that defendant violate no laws.

Case No. 06F558

Defendant was arrested in 2006 and charged in case No. 06F558 with four counts of sale or transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)‑‑counts 1 through 4). As to counts 1 through 4, it was also alleged that defendant was previously convicted of a felony involving a controlled substance within the meaning of Health and Safety Code section 11370.2, subdivision (a), and had had a prior strike for burglary within the meaning of Penal Code section 1170.12. The allegations in count 4 also formed the basis of the petition for violation of probation in case No. 04F6581.

At defendants jury trial in case No. 06F558, the court bifurcated the prior strike and prior drug conviction allegations from the substantive issues, and defendant waived his right to a jury trial on those special allegations. It was agreed that the evidence presented at the trial in case No. 06F558 would be the basis for the courts determination on the petition for violation of probation in case No. 04F6581.

The next day, defendant entered a plea agreement in case No. 06F558 whereby the information was amended to delete the reference to sale in count 4 and limit that charge to transportation of a controlled substance. The information was further amended to include allegations that defendant had two prior convictions for which he served separate prison terms and had not remained free of custody for five years within the meaning of Penal Code section 667.5, subdivision (b). Defendant agreed to plead no contest to count 4, as amended, and admit the special allegations in exchange for dismissal of counts 1 through 3 and the prior drug conviction allegation. He further agreed to an aggregate sentence of 12 years in state prison, comprised of the upper term of five years as to count 4, doubled pursuant to the prior strike, plus two years for the two prior prison terms. It was further agreed that defendants probation in case No. 04F6581 would be revoked and the case dismissed without an order executing the sentence.

The court imposed a sentence consistent with the terms of the plea agreement. Defendant filed a timely notice of appeal. His request for a certificate of probable cause was granted.

DISCUSSION

Defendant asserts that, instead of blindly accept[ing] the representations of defense counsel at his sentencing, the trial court should have confirmed from him directly that those representations were correct and should have inquired further regarding his dissatisfaction with counsel and his desire to withdraw his plea. We disagree.

Immediately preceding imposition of sentence, the following colloquy took place:

THE COURT: [Defendant] is present. This is the time, place set for sentencing. Any legal cause why we should not go forward?

[DEFENDANTS COUNSEL]: Yes. [Defendant] is requesting counsel be appointed. He is interested in withdrawing his plea. He thinks I misrepresented‑‑

THE DEFENDANT: Excuse me, Your Honor.

THE COURT: Thats fine. I will certainly appoint another lawyer for you.

THE DEFENDANT: No. 

THE COURT: Why dont you talk to [defense counsel], and he can tell me what you want to tell me.

Following a discussion between defendant and his counsel, the court asked counsel whether he wished to trail the matter to allow further discussion with defendant. Counsel replied, I dont know if any discussions with [defendant] will be fruitful. He says he wants a Romero^[[1]] hearing. When the court noted defendant was not entitled to a Romero hearing, counsel agreed and informed the court, My understanding is [defendant] would want to withdraw his plea. The court instructed that the matter be trailed to allow counsel to have further discussions with defendant. Following those discussions, counsel reported to the court that defendant was prepared to be sentenced. Nothing further was discussed in that regard, and the court proceeded to sentence defendant pursuant to the terms of the plea agreement without objection.

Although defendant now concedes that he expressly rejected the trial courts offer to appoint substitute counsel, he urges that the court nonetheless had a duty to make further inquiry in that regard and as to his desire to withdraw his plea. In support of that contention, defendant cites a plethora of cases, including People v. Hidalgo (1978) 22 Cal.3d 826, 827 [the defendant filed timely motion to substitute counsel]; People v. Lewis (1978) 20 Cal.3d 496, 497 [the defendant made motion to relieve counsel]; People v. Ivans (1992) 2 Cal.App.4th 1654, 1657-1658 [the defendant asked court to appoint new counsel]; People v. Hill (1983) 148 Cal.App.3d 744, 752-753 [the defendants complaints regarding counsels representation triggered trial courts duty to inquire into basis for dissatisfaction]; People v. Groce (1971) 18 Cal.App.3d 292, 295-296 [trial court had duty to inquire following the defendants statements of doubt as to counsels adequacy]. These cases are all distinguishable for the same reason: The courts duty of inquiry arose as a result of an express request or motion by the defendant for substitution of counsel. The same cannot be said for this case.

Defendants counsel informed the court that defendant wanted new counsel and was interested in withdrawing his plea. Defendant interrupted counsel and expressly rejected the courts offer to appoint another attorney to represent him. Following two separate discussions between defendant and his attorney off the record, counsel indicated to the court that defendant was ready to be sentenced. There was no request pending at that time for substitution of counsel, nor was there a pending request to withdraw the plea. Although it was evident, from his prior comments to the court, that defendant was capable of speaking up on his own behalf, he made no further comment on the matter, nor did he object when the court proceeded with sentencing. Under those circumstances, the court had no reason, nor did it have any obligation, to delve into the reasons underlying defendants refusal of substitute counsel or to further inquire regarding possible withdrawal of the plea.

In any event, we note the painstaking efforts by the trial court to ensure that defendant was exercising free and clear judgment at the time he entered into the plea agreement. (People v. Cruz (1974) 12 Cal.3d 562, 566 [the defendant must establish good cause exists for withdrawing guilty plea where mistake, ignorance or other factor prevented his exercise of free judgment].) As the People correctly point out, the record demonstrates defendants understanding that the use of the strike to double the term imposed for his conviction was an integral and essential component of his plea bargain. It is also clear that the plea agreement did not include a reservation of the right to make a Romero motion at the time of sentencing.

We conclude there was no error by the trial court.

DISPOSITION

The judgment is affirmed.