P. v. Farnsworth

Filed 10/26/07 P. v. Farnsworth CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey Jones, Judge. Affirmed.

Mark Farnsworth pled no contest to conspiracy to bring controlled substance into state prison. The plea agreement states, "I understand that I have the right to appeal any adverse decision and I give up that right." He subsequently moved to withdraw the plea, and the trial court denied the motion. Farnsworth contends: (1) there was an insufficient factual basis for the plea; (2) his attorney mislead him and denied him effective assistance of counsel; therefore, he did not freely and voluntarily enter into the plea; (3) the court erred in denying his motion for a further continuance to subpoena his former attorney; (4) he is entitled to appeal sentencing issues which were not foreseeable when he signed the plea agreement; (5) he is entitled to work credits, and this court should order the trial court to amend the abstract of judgment accordingly. Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On December 9, 2004, a grand jury indicted Mark Farnsworth and two codefendants of conspiracy to bring a controlled substance into the state prison where they were confined (Pen. Code^[1], 182, subd. (a)(1); 4573; 1170.1, subd. (c)), and the indictment alleged as an enhancement that he had suffered three strike priors. ( 667, subds. (b)-(i).)

On February 28, 2005, Farnsworth pled no contest to the charged crime; in exchange, the prosecutor agreed to strike the enhancement, and limit Farnsworth's maximum sentence to the upper term of four years in prison. Attorney David Rung represented Farnsworth for purposes of negotiating the plea.

On May 26, 2005, Farnsworth moved to withdraw his plea under section 1018, alleging he only entered into the agreement because Rung falsely told him he had filed both a motion to dismiss the charges under section 995 and a motion to sever Farnsworth's case from that of his codefendants. At the hearing on the motion to withdraw the plea, Farnsworth testified Rung also told him the jury would be biased against him because approximately 90 to 95 percent of the jurors in Imperial County are related to correctional officers; but Rung did not tell him the jurors could be questioned regarding any biases they might hold. Farnsworth also testified Rung told him the agreed upon four-year sentence was the midterm, and not the upper term.

On August 25, 2005, the trial court denied the motion and at the hearing stated, "It seems to me, just in reading of the transcript seems to suggest [sic] that there is a factual basis for the charge of the conspiracy . . . that [Farnsworth] and other people were conspiring to bring drugs into the state prison." The trial court continued, "I really wish I could have had some indication from Mr. Rung, subpoenaed him. If he hadn't responded to that subpoena, I would have started scratching my head why he would not and maybe made some inferences. But I really just have Mr. Farnsworth's word on this thing. I'm not convinced by the [sheer] force of [Farnsworth's] statement, even under oath, as to the truth of these things." The trial court further questioned Farnsworth's credibility regarding statements Rung allegedly made, noting it was "hard to swallow" the notion Rung would lie to Farnsworth regarding the section 995 motion or the motion to sever. The court noted Farnsworth did not mention in his testimony that he received a quid pro quo: absent the plea, Farnsworth would have gotten a life sentence. The court stated, "But back to the issue of Mr. Rung, if I was convinced that this happened or a reasonable possibility that it happened, I would grant this motion because that's something I would not tolerate from any attorney. But it's such, like I said, such an egregious thing, I find it difficult to believe it." Finally, the court stated, "I think we are back to the issue of Mr. Rung allegedly making all of these representations to Mr. Farnsworth. And I find his testimony to be somewhat not credible on the other issues as well. They tend to reflect on his credibility concerning Mr. Rung's alleged representations to him." The trial court concluded, "I cannot say that the disposition reached here was an unfair one for him. When three strikes are stricken and he gets four years, hey, I can't say 'I've been misled and entered into an unknowing disposition. I was not able to exercise my free will because of these representations made to me.' "

At an October 6, 2005 hearing^[2], the trial court stated its view that "Rung should be subpoenaed." On January 19, 2006, the court granted Farnsworth a five-week continuance to file a motion for reconsideration of the court's denial of his request to withdraw his plea. On March 2, 2006, Farnsworth's counsel stated he had tried, unsuccessfully, to contact Rung; therefore, the court granted a continuance for filing the motion for reconsideration. On March 9, 2006, Farnsworth filed a motion for reconsideration. On May 3, 2006, Farnsworth filed a motion for a further continuance. On May 12, 2006, during the hearing on both motions, defense counsel stated he still had not contacted Rung, and he regarded the 10 hours the court agreed to pay for an investigator's services for that purpose to be insufficient. The court denied defense counsel's motion for another continuance to contact Rung, and also denied the motion for reconsideration.

On May 25, 2006, the court sentenced Farnsworth to four years in prison as per the plea agreement and section 1170.1, subdivision (c)^[3] to be served consecutively to the term Farnsworth was currently serving for attempted murder because Farnsworth committed the underlying crime while in prison.

DISCUSSION

I.

The People request that we dismiss Farnsworth's appeal based on his waiver of rights to appeal any adverse decision.^[4] Although we could dispose of the entire case on the basis of waiver, we elect to address certain contentions on the merits.

Farnsworth contends there was an insufficient factual basis for the plea because the parties stipulated the preliminary hearing transcript was the factual basis for the plea. No preliminary hearing was held in this case because the grand jury returned an indictment. We set forth the exchange the parties had in the trial court:

"The Court: Okay. How about a stipulation to the factual basis, counsel. Any comments is this a case involving the preliminary hearing?

"Mr. Rung: We'll stipulate to a factual basis based on transcripts of the preliminary hearing.

"[The Prosecutor]: People stipulate as well.

"The Court: The court will note that the stipulation that the evidence introduced at the preliminary hearing provides a sufficient factual basis for this plea."

We reject this contention because from the context of the parties' stipulation it is obvious that the trial court and counsel misspoke, and the reference to the "preliminary hearing" by the trial court and counsel could refer only to the transcript of the grand jury hearing, which provided a proper basis for the underlying charges.

II.

Farnsworth further contends his written waiver was not knowing, voluntary and intelligent because at the time he made it he was unaware Rung had misled him. We disagree. Section 1018, which governs the withdrawal of guilty pleas, provides: "On application of the defendant at any time before judgment . . . the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." A showing of good cause under this standard must be supported by clear and convincing evidence. ( People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval); People v. Weaver (2004) 118 Cal.App.4th 131, 145; People v. Wharton (1991) 53 Cal.3d 522, 585.) " ' "To 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 defendant's free judgment include inadvertence, fraud or duress. [Citations.]" [Citation.] "The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." ' " (Sandoval, at p. 123; People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Wharton, at p. 585.)

" ' "When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]" [Citation.] "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." ' " (Sandoval, supra, 140 Cal.App.4th at p. 123; People v. Holmes (2004) 32 Cal.4th 432, 442-443; see also People v. Urfer (1979) 94 Cal.App.3d 887, 893, fn. 6, citing Blackledge v. Allison (1977) 431 U.S. 63.) "Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

The defendant's signature on the waiver form upon the advice of counsel and the confirmation of his understanding of the consequences of the waiver by the trial court furnish adequate evidence of a knowing and voluntary plea. (People v. Panizzon (1996) 13 Cal.4th 68, 84 (Panizzon).) "So long as the waiver form contains sufficient information, and both the defendant and his counsel attest to its valid execution, the judge may, in his discretion, dispense with further explanation to the defendant of his rights." (In re Ibarra (1983) 34 Cal.3d 277, 286, disapproved on other grounds, People v. Howard (1992) 1 Cal.4th 1132, 1174- 1175.) In other words, the written waiver of rights is sufficient unless events during the plea hearing raise a doubt that defendant understood and knowingly waived his rights. (People v. Castrillon (1991) 227 Cal.App.3d 718, 722.)

In reviewing claims of ineffective assistance of counsel, we apply a deferential level of scrutiny to the trial counsel's performance, and the appellant must affirmatively prove prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 216; 217.) The familiar two-prong test for claims of ineffective assistance of counsel, outlined in Strickland v. Washington (1984) 466 U.S. 668, 686-687, requires a defendant to demonstrate the attorney's deficient performance and resulting prejudice. If the second prong is not established, the reviewing court should reject the claim without analyzing the first prong . (People v. Kipp (1998) 18 Cal.4th 349, 366-367.)

Here, as noted above, the trial court conducted a hearing on the motion to withdraw the plea, and found not credible Farnsworth's testimony regarding Rung's allegedly misleading statements. Therefore, the court concluded Farnsworth failed to prove Rung's performance was deficient. Substantial testimony supported this finding. Moreover, Farnsworth has failed to show prejudice. He concedes in his opening brief, "It is true that appellant's plea provided for the dismissal of prior offenses and that appellant would have risked life in prison if the prior offenses were not dismissed." Based on the facts before us, it is not reasonably probable that Farnsworth would have received a more favorable sentence absent the claimed ineffective assistance of counsel.

III.

We reject Farnsworth's contention the trial court abused its discretion in denying him a continuance to subpoena Rung. " 'Continuances shall be granted only upon a showing of good cause,' " and the moving party must show that the evidence could be obtained within a reasonable time. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) Here, the trial court had granted Farnsworth prior continuances to subpoena Rung, and Farnsworth was unsuccessful. Farnsworth failed, in his last motion, to demonstrate that a further continuance would produce evidence within a reasonable time. Under these circumstances, the trial court did not abuse its discretion.

IV.

Farnsworth contends that the trial court erred in imposing a full term consecutive sentence under section 1170.1, subdivision (c) because the underlying crime was not his first in-custody offense; rather, under section 1170.1, subdivision (a), the trial court should have sentenced him to one-third of the midterm. Farnsworth relies on People v. Sherrick (1993) 19 Cal.App.4th, 657 for the contention his sentencing claims related to future error, and therefore were not waived. The California Supreme Court has resolved this issue against Farnsworth. "Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extend to any right to appeal such sentence. Thus, what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal. Since both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made, the reasoning of People v. Sherrick, supra, . . . is inapposite." (Panizzon, supra, 13 Cal.4th at p. 86.) Farnsworth's challenge to his sentence is waived.

V.

Farnsworth contends he is entitled to work time credits under section 2933.1. The same issue was raised in the trial court, which ruled, "There's nothing in this sentence that renders you ineligible for halftime credits . . . But I can't issue orders to the Department of Corrections on how to make the calculation. If they do it wrong, you have to bring a writ petition. But they are entitled to notice if you were to take one position or another, made yourself unavailable for work, committed an in-prison offense, your wouldn't be eligible for halftime credits." That ruling correctly stated the law as outlined in People v. Hawley (1980) 100 Cal.App.3d 941, 946 and People v. McCutcheon (1986) 187 Cal.App.3d 552, 560. Accordingly, we deny Farnsworth's request that this court order the trial court to amend the abstract of judgment.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

McINTYRE, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

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

^[2] This hearing related to a motion filed pursuant to People v. Marsden (1970) 2 Cal.3d 118; it is not a subject of this appeal.

^[3] Section 1170.1, subdivision (c) states, "In the case of any person convicted of one or more felonies committed while the person is confined in a state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). This subdivision shall be applicable in cases of convictions of more than one offense in the same or different proceedings."

^[4] On October 27, 2006, we sent the parties a letter stating, "The court notes the superior court granted appellant's second request for a certificate of probable cause on October 16, 2006, submitted with the amended notice of appeal. The parties are again requested to brief the scope of the waiver on the change of plea form executed by appellant on February 28, 2005, as directed by this court on August 1, 2006." The parties' response was included in their appellate briefs.