P. v. Pratts

Filed 7/7/06 P. v. Pratts CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles E. Jones, Judge. Affirmed.

On October 27, 2004, Dierek Pratts entered negotiated guilty pleas to inflicting corporal injury on his wife (Pen. Code, § 273.5, subd. (a)) and violating a protective order (Pen. Code, § 166, subd. (c)(1)). The court suspended imposition of sentence and placed him on probation for three years, including conditions he undergo drug testing, enroll in a drug treatment program, submit to DNA testing, and not use or possess a controlled substance. On May 11, 2005, Pratts admitted violating these probation conditions. The court revoked, reinstated, and modified probation by adding a condition Pratts serve 365 days in custody. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue whether the trial court erred in failing to provide Pratts with his Boykin/Tahl rights (Boykin v. Alabama (1968) 395 U.S. 238, 242-243; In re Tahl (1969) 1 Cal.3d 122, 132) before accepting his admission of violating probation.^[1]

We granted Pratts permission to file a brief on his own behalf. He has responded. Pratts contends that in sentencing him, the trial court did not consider his "statement in mitigation, the motion to dismiss for prosecutorial misconduct, the motion to reduce to a lessor [sic] under JACKSON, [Citation omitted] or other mitigating factors that the Defendant was an unofficial informant for the San Diego Police." We disagree. At the combined probation revocation/sentencing hearing, Pratts orally made a statement in mitigation to the court and the deputy district attorney responded with Pratts's unsatisfactory conduct while on probation. The court then reinstated probation with the condition Pratts serve 365 days in custody. The record also includes a written statement in mitigation dated November 24, 2004, that was apparently compiled for the November 29 sentencing hearing at which the court placed Pratts on probation. The record does not include a motion to dismiss for prosecutorial misconduct. The burden is on the appellant to prove error. (People v. Green (1979) 95 Cal.App.3d 991, 1001.) Absent any evidence to the contrary, it is presumed the court properly exercised its legal duty. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Pratts has not carried the burden of showing the trial court did not consider all relevant material in deciding to place him on probation and to reinstate probation.

Pratts also claims he was denied due process of law through the trial court excluding evidence. He does not say what evidence was excluded. We have reviewed the record and find no improper exclusion of evidence.

Pratts contends he was denied effective assistance of trial counsel. Pratts was representing himself when he entered the guilty pleas. A public defender was appointed to represent him at the probation revocation/sentencing hearing. The record sheds no light on the contention that the deputy public defender provided inadequate assistance of counsel. "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus filed in the trial court. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Pratts claims the trial court should not have accepted the guilty plea in light of his statements. When Pratts entered the guilty pleas he told the court that he willfully slapped his wife and caused her to suffer a traumatic injury. In light of this statement, the court did not abuse its discretion in accepting the guilty plea. (See People v. Wilkins (1993) 14 Cal.App.4th 761, 771.)

Pratts claims that two hearings were held out of his presence while he was representing himself. Pratts was absent from a hearing on the order to show cause regarding revocation of probation after he was served with notice of the hearing but did not appear. The court issued a bench warrant. The record does not support the claim that a hearing was unlawfully held in his absence.

Pratts refers to a hearing held in this case on December 12, 2005, and argues that an appeal from an apparently adverse ruling at the hearing was timely filed. The record before the court contains no information on a hearing held in December 2005.

Pratts argues that the evidence does not support the conviction of infliction of corporal injury on a spouse. As indicated above, because Pratts entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin, supra, 9 Cal.3d at p. 693.)

Pratts claims that an injunction should have been issued. This is an appeal in a criminal case. An injunction is relief obtainable in a civil case. Nowhere in the record before this court is there a request by Pratts for injunctive relief.^[2] Having not moved for injunctive relief in the trial court, Pratts cannot seek injunctive relief on appeal.

In his request for a certificate of probable cause, Pratts claimed he entered the guilty pleas in 2004 because of duress and in the report prepared for the hearing in 2005 the probation officer lied. Pratts did not object at the time of sentencing to the contents of the probation report. Objections to the contents of the probation report or other material relied upon by the sentencing court must be made in the trial court or deemed waived on appeal. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)

Regarding the claim the he entered the quilty pleas in 2004 under duress, when an appeal is filed within 60 days of an order revoking probation but beyond 60 days of the order placing a defendant on probation, only the appropriateness of the revocation can be raised, not the validity of the conviction. (People v. Wright (1969) 275 Cal.App.2d 738, 739; People v. Munoz (1975) 51 Cal.App.3d 559, 563.)

Review of the record pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Pratts on this appeal.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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^[1] Because Pratts entered guilty pleas, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.

^[2] While this appeal was pending, Pratts filed a petition for a writ of habeas corpus with this court. The petition sought substitution of appellate counsel. (In re Pratts (Feb. 16, 2006, D047592) [pet. denied].) In the declaration attached to the petition he asked for a continuance because discovery was needed, claimed he had not been provided with court records, and that his probation officer had engaged in improper activity to deprive him of his rights. He attached papers he provided to the trial court that include a claim that the trial court denied a request for a protective order apparently against his probation officer, because it was "technically deficient," and two days later he was arrested for violating probation. Even if he consider the habeas corpus petition as part of the record before the court in the current appeal, Pratts has not raised an arguable appellate issue based on a claim of improper denial of injunctive relief.