P. v. Wells

Filed 3/28/06 P. v. Wells CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Counsel for defendant Ajaibu Kootny Wells has filed an opening brief in which she raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. We have conducted that review, and finding no arguable issues, affirm the judgment.

Background

According to defendant's probation report, on May 10, 2003, the home of defendant's father was entirely burned and destroyed, and his car vandalized. Defendant's former boyfriend reported that, earlier on the same day, he had heard defendant inside the house screaming and breaking things. She had told other people that she intended to burn the house, and several witnesses reported seeing her walk away from the house declaring that she had burned it down. Defendant was arrested later that day. She admitted that she had vandalized the house, but did not admit to burning it, and also stated that if she did cause the fire, it was an accident. An investigation suggested that the cause of the fire was arson.

Defendant was charged with having recklessly set fire to the house, a form of arson (Pen. Code, § 452, subd (b)).[1] She pled not guilty on May 13, 2003. On May 16, 2003, the court suspended proceedings and referred the matter to the Humboldt County mental health department to determine whether defendant was competent to understand the nature of the criminal proceedings and to assist her attorney in conducting a defense. On May 21, 2003, the court, after receiving a report that defendant was not competent, set the matter over for a recommendation of placement. On June 9, 2003, the court ordered defendant sent to the Patton State Hospital competency program. (§ 1370, subd. (a)(2).) In August 2003, it was discovered that Patton State Hospital had not accepted defendant because the committing order did not state the maximum term of commitment or defendant's credits. The matter was continued so that an amended order of commitment could be prepared, and finally, on September 26, 2003, defendant was transported to the state hospital.

Criminal proceedings were reinstated on December 29, 2003, after the court received certification of defendant's competence. On January 13, 2004, defendant appeared before the court. It seems that her attorney had negotiated a plea and disposition with the district attorney. Defendant, although expressing some willingness to go along with the disposition, and understanding that the plea might be in her best interest in that it would allow her to avoid time in prison, maintained that she had not burned down the house. The court responded that under the circumstances, it was not prepared to accept a plea of guilty.

As defendant also was complaining that she had difficulties connecting with her attorney, the court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the hearing, defendant explained her problems with her attorney, complaining that he did not understand or appreciate her complaints that her father had raped her and that in any event, she had not committed arson. She believed that the fire was started by her former boyfriend who, according to defendant, also had raped her. She complained that her attorney had not brought up the rapes to the court or argued that the witnesses lacked credibility because she had accused them of rape. She also felt that her attorney should not be questioning her competency, and stated that he had accused her of almost killing someone, which wasn't true. Counsel replied that he had tried to explain to defendant that allegations of sexual abuse would not help her in the arson prosecution. He had not accused her of almost killing anyone, but had explained to her that she had been charged with a felony that involved a serious threat of bodily harm. The court denied the motion, noting that counsel was experienced and finding that there had been no showing that he had failed to provide defendant with adequate representation. The court then continued the matter so that defendant could have more time to discuss her case with her attorney.

On January 27, 2004, defendant appeared with her attorney. Once again the idea was that she would accept a negotiated plea, but after discussing the matter with the court, defendant stated that she did not wish to go ahead. Defendant and her attorney appeared before a different judge that afternoon, where counsel asked that the criminal proceedings be suspended so that defendant's competency could be evaluated. The court agreed, ordered that the evaluation be done, and continued the matter for two weeks.

Defendant's physician found her to be competent to stand trial. On February 25, 2004, defendant entered a plea of no contest to charges, set forth in an amended complaint, of recklessly causing a residence to burn (§ 452, subd. (b)) and also to felony vandalism (§ 594, subd. (b)(1)), as part of a negotiated plea that would result in a sentence of four years eight months, with sentence suspended and defendant placed on probation with counseling as one of the conditions of probation. The court explained defendant's rights to her in detail, and the record reflects that defendant understood what she was giving up by entering the plea, and that the plea was freely and voluntarily given. Counsel stipulated that there was a factual basis for the plea. The matter was put over for a presentence report and sentencing.

In March 2004, a social worker with the Humboldt County Correctional Facility reported that defendant had refused psychiatric medications and demonstrated she was not amenable to the mental health services offered by the county, had not been receptive to input from mental health staff, and had not demonstrated an ability to conceptualize how her behavior adversely affected others. Defendant filed a 29-page letter outlining her complaints, beliefs and wishes. On April 9, 2004, the court, after securing the agreement of both parties, referred defendant to the Department of Corrections for a 90-day diagnostic evaluation.

The case was continued, ultimately, to September 15, 2004. The probation report submitted in connection with those proceedings summarized the reports of a number of medical professionals who had treated or observed defendant, concluding that she presented a threat to the safety of others, was difficult to work with and unresponsive, and that her mental health had not improved since her arrest. Defendant's probation officer concluded that sentencing defendant to prison was the safest option both for her and for the community. She therefore recommended that the court reject the conditional plea. At the hearing, the parties and court discussed the possibility of allowing defendant to reaffirm the plea, but altering the disposition so that she would receive a sentence of four years without probation. The court explained the consequences of this course of action to defendant, who stated that she understood. The record reflects that defendant did indeed understand the consequences of her plea. She was uncertain whether she was admitting to anything in addition to the admissions made when the first plea was proposed, but after it was explained that she was not admitting that she had set a fire intentionally, agreed to the proposed disposition. The court then sentenced defendant to the aggravated term of four years for the arson, and to a concurrent two-year term for the vandalism. It imposed a restitution fine of $800 and a parole revocation fine in the same amount. After sentence was imposed, defendant asked the court to give her another chance. The court declined to do so, but explained defendant's appellate rights to her. The parties and court agreed that defendant was entitled to credits of 701 days, and the judgment awarded defendant those credits.

On October 15, 2004, defendant filed a motion to recall her sentence, requesting that she be resentenced consistent with the mandate of Blakely v. Washington (2004) 542 U.S. 296 (Blakely). The court denied that motion on November 29, 2004.

Defendant filed an appeal from the judgment and from the denial of her motion to recall the sentence.

Discussion

The record reflects that defendant suffers from a mental disorder that, from time to time, causes her to be confused. It also reflects that the court, and defendant's attorney, were well aware of this difficulty and were careful to ensure that she was fully informed about the proceedings and was able to understand them and their consequences, before making any decisions. Defendant's plea, and her later reaffirmation of that plea, were voluntary. Defendant was not prejudiced by the amendment to the complaint, as she at all times admitted that she had vandalized her father's home. By pleading no contest to the charges, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that merely goes to the question of guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) The court properly exercised its discretion in denying defendant's Marsden motion. (Marsden, supra, 2 Cal.3d 118.) Defendant was permitted to explain to the court her reasons for being dissatisfied with her attorney, but stated no reasons justifying appointment of a different attorney. Her accusations about actions taken against her by her father and former boyfriend provided no defense to the charges, and her attorney was not ineffective for attempting to work out a negotiated plea notwithstanding defendant's protestations of innocence, reasonably recognizing that there was significant evidence that defendant had in fact committed the crimes. Counsel acted competently throughout the proceedings.

Defendant was sentenced in accordance with the terms of her negotiated plea. The four-year term was both fair and authorized by law. (§§ 18, 452, subd. (b), 594, subd. (b)(1).) The court properly supported its imposition of the aggravated term, citing the factors that the crime involved violence, was carried out in a manner indicating planning and involved great monetary damage, and defendant had engaged in activity that presented a serious danger to the public. (Cal. Rules of Court, rule 4.421.) The concurrent sentence for vandalism was proper, and did not violate section 654, as defendant admitted to having destroyed a number of things in the victim's home before the residence burned, and there was evidence that she also vandalized the victim's car. The court had the authority to impose the restitution and parole revocation fines. (§§ 1202.4, subd. (a)(3)(B) & 1202.45; 1465.8, subd. (a)(1).) Defendant was given all credits to which she was entitled.

The court properly denied defendant's motion to recall the sentence. Defendant's sentence did not violate Blakely, supra, 542 U.S. 296, as the judicial factfinding that occurs when a judge exercises discretion to impose the aggravated sentence does not implicate a defendant's Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244.)

In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.

The judgment is affirmed.

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STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

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[1] All statutory references are to the Penal Code.