P. v. Lowder

Filed 5/31/07 P. v. Lowder CA1/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Michael David Lowder, by an amended notice of appeal, appeals from his conviction of a single count of receiving stolen property and the sentence following that conviction. ( 496, subd. (a).[1]) Counsel for defendant has filed an opening brief in which he 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. Counsel also has filed a declaration in which he states he advised defendant of his right to file his own supplemental brief. Defendant has not filed a supplemental brief.

We have conducted a review, and finding no arguable issues, affirm the judgment.

Background

Defendant was arrested on February 7, 2005, after he was found to be living in a stolen motor home. The following day a criminal complaint was filed against defendant, charging him with receiving stolen property. On March 4, 2005, after discussing the matter with defendants attorney, the court initiated proceedings to determine defendants competency. ( 1368.) On April 27, 2005, after reviewing the report of a psychologist appointed for the purposes of determining whether defendant was competent to stand trial, the court ruled defendant incompetent within the meaning of the law and referred the matter to CONREP for a placement report. The court later referred defendant to the North Bay Regional Center, and then to Napa State Hospital. The court also dismissed a separate misdemeanor case against defendant.

On June 21, 2005, after counsel informed the court he believed his wife knew one of the victims, the court appointed a different attorney to represent defendant. On May 22, 2006, after determining defendants competency had been restored, the court reinstated criminal proceedings. Defendant subsequently entered a plea of no contest to receiving stolen property. He demonstrated he understood and voluntarily waived his right to trial and related rights, by initialing and signing a plea form that explained to him the rights he was waiving by entering the plea. After reading the report of defendants probation officer, and providing defendant with the opportunity to ask any questions, the court accepted defendants plea and found him guilty as charged. The court suspended imposition of sentence and placed defendant on probation for one year, on the condition defendant serve a term of 286 days in jail and stay away from the victims of his crime. The court further ordered defendant to pay a presentence report fee of $560 if he had the ability to pay, a probation service fee in an amount not to exceed $240 and a $600 indigent defense reimbursement fee. The court also found defendant lacked the ability to pay the fees.

On July 26, defendant, acting in pro. per., filed a motion to withdraw his plea. Defendant appeared before the court, and explained that the reason for his motion was, Because I, I talked to bunches of people that I know that knew what was going on, and they said I should have taken it to trial, because the police never came to talk to them or nothing like that about what happened, and they said that when I take it to trial, that theyll testify on my behalf . . . . The court, finding defendant had stated no grounds for setting aside his plea, denied the motion.

Upon the application of appellate counsel, the court amended the judgment to award defendant 520 days actual credit and 122 days conduct credit, for a total of 642 days credit for time served.

Discussion

By pleading guilty, defendant admitted the sufficiency of the evidence establishing the crime, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, because defendant did not obtain a certificate of probable cause, he cannot contest the validity of his plea; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress evidence or issues relating to matters arising after the plea was entered. (Pen. Code,  1237.5; Cal. Rules of Court, rule 8.304.)

There was no motion to suppress and nothing in the record suggests any basis for a motion to suppress. Defendants plea bars him from making any argument that he did not in fact commit the crime, and in any event, that he was living in a stolen motor home is strong evidence defendant did commit the crime. The courts order suspending imposition of sentence and placing defendant on probation was reasonable and within the courts discretion. The conditions imposed on the grant of probation were reasonable and within the courts discretion. ( 1203.1.) The court acted properly by imposing the fees but finding defendant lacked the ability to pay them. Defendant was given all the credits to which he was entitled.

Although defendant is not entitled to contest the validity of his plea, we find no abuse of discretion in the courts denial of defendants motion to withdraw his plea. The court had discretion to allow defendant to withdraw his plea upon a showing of good cause ( 1018), but good cause is not shown by a change of heart. Rather, [t]o establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] However, [a] plea may not be withdrawn simply because the defendant has changed his mind. [Citations.] (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

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.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MJARGULIES, J.

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