P. v. Macias

Filed 9/29/06 P. v. Macias CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to one count of possession of cocaine and one count of possession of heroin (Health & Saf. Code, § 11350, subd. (a)). He also admitted that he had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison terms (Pen. Code, § 667.5). In return, the remaining enhancement allegations were dismissed, and he was promised a sentence of 9 years 4 months. After the court denied his motion to withdraw his guilty plea, defendant was sentenced in accordance with the plea agreement. Defendant’s sole contention on appeal is that his guilty plea, which included a promise he could raise the issue of ineffective assistance of counsel on appeal, was illusory, and therefore he should be allowed to withdraw his plea. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[1]

On March 18, 2005, Rialto narcotics detective Johnny Partida seized 14 balloons of heroin and cocaine during a traffic stop. During that stop, Officer Partida answered a cellular telephone. The person calling indicated that he wanted to buy heroin. Officer Partida arranged with that individual to meet at a location in Rialto.

When Officer Partida arrived, defendant exited the passenger side of a vehicle, approached Officer Partida, and told the officer he wanted to buy $30 worth of heroin and cocaine. Defendant then gave Officer Partida the money, and Officer Partida gave defendant the balloons. Defendant was subsequently arrested.

On July 5, 2005, Defendant executed a plea agreement in which he agreed to plead guilty to one count of possession of heroin and one count of possession of cocaine and to admit one prior strike conviction and two prior prison terms, in exchange for a total prison term of 9 years 4 months. As part of the plea agreement, defendant waived his right to appeal from the judgment, except for any issue relating to ineffective assistance of counsel. Defendant thereafter pleaded in open court in accordance with the plea agreement.

Three months later, on October 5, 2005, new counsel for defendant filed a motion to withdraw his guilty plea based on the grounds that he was pressured by his attorney and the court, that the court gave an improper explanation of his rights, and that he was misled by his attorney at the time of the plea. At the November 9, 2005, hearing on the motion, defendant testified that when he executed the plea agreement, he thought he was pleading guilty to one count of possession of a controlled substance and admitting one prior strike conviction, in exchange for a sentence of 7 years 4 months. He was aware, however, that he was a three-strike offender. He also stated that during his four court appearances, various public defenders spoke with him about his exposure of 50 years to life (defendant was charged with three prior strike convictions) and that each had recommended he accept the plea offer. Defendant claimed he felt pressured to accept the plea on the basis of what he had been told by the public defenders and Commissioner Knish’s comment that he would be “dodging a lot of bullets.” Defendant acknowledged that his attorney had gone over his case with him, that he had signed and initialed the plea form but had not read it, and that he had waived his rights.

Deputy Public Defender Laura Alvarez, who represented defendant prior to and at the preliminary hearing, testified that while she thought defendant may have a potential defense to the charges, she wanted to be certain defendant was aware he faced the potential of a life term if he lost at trial. Even though she was prepared to go to trial, she requested other public defenders speak with defendant to give him their opinion as to the benefit of pleading guilty versus going to trial. Attorney Alvarez explained that once the offer was conveyed to defendant, defendant had sufficient time to think about it and that neither she nor the other attorneys pressured defendant into taking the plea.

Deputy Public Defender Diana Soriano, who represented defendant during the plea negotiations, testified that it was her practice to give the client the plea form, have the client read it, then have him initial the open boxes if he understood the statements. If the client did not understand the statement in the plea form, Attorney Soriano advised him to not initial that box and that she would then explain the statement in question. Attorney Soriano testified that she conveyed the offer to defendant, explained that the decision to accept the offer was his, and had defendant initial the plea form; then she and defendant signed the plea form. She maintained that she did not force or coerce defendant into accepting the plea agreement.

Following argument, the court found that defendant had failed to prove impropriety by clear and convincing evidence, that there was no legal basis to grant defendant’s motion to withdraw his plea, that there was no incompetence of counsel, and that the plea was voluntary. The court also found that it had gone over the rights with defendant in open court at the time the plea was taken, including his right to appeal the decision except as to ineffective assistance of counsel, and defendant had indicated that he understood his rights.

Defendant was thereafter sentenced in accordance with the plea agreement. The trial court subsequently explained to defendant, “[Y]ou have a right to appeal, a limited right to appeal. You have a right to appeal the proceedings that were held earlier today, at least.”

On January 6, 2006, defendant filed his notice of appeal but failed to obtain a certificate of probable cause.

II

DISCUSSION

Defendant essentially argues that when a guilty plea is entered in reliance upon a trial court’s promise that a nonappealable issue may be raised on appeal, the plea may be withdrawn. He claims that the promise he could appeal any claim of ineffective assistance of counsel was “illusory” because the issuance of the certificate does not “make cognizable those issues which have been waived by the plea of guilty. [Citation.]” (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) Defendant concludes that his conviction therefore must be reversed and the matter remanded so that he can, if he wishes, withdraw his plea. (See, e.g., People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821; People v. Hollins (1993) 15 Cal.App.4th 567, 574-575.)

The process of plea bargaining “contemplates an agreement negotiated by the People and the defendant and approved by the court.” (People v. Orin (1975) 13 Cal.3d 937, 942; see also In re Lewallen (1979) 23 Cal.3d 274, 280-281.) “Failure of the state to honor the agreement violates the defendant’s due process rights for which the defendant is entitled to some remedy.” (People v. Lopez (1998) 66 Cal.App.4th 615, 636; see also People v. Campbell (1994) 21 Cal.App.4th 825, 829.) “’Where a defendant’s plea is “induced by misrepresentations of a fundamental nature“ such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]’ [Citation.]” (People v. Hollins, supra, 15 Cal.App.4th at p. 574 [illusory promise of appealability was improper inducement for the plea; the trial court and the parties agreed the defendant could appeal the denial of his Penal Code section 995 motion]; see also People v. Coleman (1977) 72 Cal.App.3d 287, 292 [illusory promise of that the defendant had the right to appeal the denial of his request for the identity of the informant]; People v. DeVaughn (1977) 18 Cal.3d 889, 893, 896 [errors not cognizable on appeal after guilty pleas cannot be preserved for appeal by trial court’s issuance of certificates of probable cause; defendant’s guilty plea was improperly induced by unenforceable promises that issues were preserved for appeal].)

“Other than search and seizure issues specifically reviewable under [Penal Code] section 1538.5, subdivision (m), all errors arising prior to entry of plea of guilty or nolo contendere are waived by the plea, except those based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings . . . .’” (People v. Shults (1984) 151 Cal.App.3d 714, 718-719; see also Pen. Code, § 1237.5, subd. (a); People v. Kaanehe, supra, 19 Cal.3d 1, 9; People v. DeVaughn, supra, 18 Cal.3d 889, 895-896.) The reason for the rule is that either plea “admits all matters essential to the conviction.” (DeVaughn, at p. 895; see also People v. LaJocies (1981) 119 Cal.App.3d 947, 956; Pen. Code, § 1016.) The parties and the trial court cannot, by an agreement for issuance of a certificate of probable cause, expand the jurisdiction of the appellate court and make cognizable on appeal an issue that has been waived by a plea of guilty or no contest. (See Kaanehe, at p. 9; DeVaughn, at pp. 895-896.) Moreover, “[o]btaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.”^[2] (Kaanehe, at p. 9.)

In sum, issues that merely go to the guilt or innocence of a defendant are “removed from consideration” by entry of the plea. (People v. Pinon (1979) 96 Cal.App.3d 904, 909-910, citing People v. DeVaughn, supra, 18 Cal.3d at pp. 895-896; see also People v. Ribero (1971) 4 Cal.3d 55, 63.) Accordingly, matters waived by these pleas include the right to a speedy trial (People v. Hayton (1979) 95 Cal.App.3d 413, 416-419; People v. Lee (1980) 100 Cal.App.3d 715, 717-718; fairness of a pretrial lineup (People v. Stearns (1973) 35 Cal.App.3d 304, 306); constitutional defects in a prior conviction (People v. LaJocies, supra, 119 Cal.App.3d at pp. 956-957); admissibility of an extrajudicial statement (other than on grounds of unlawful search or seizure) (DeVaughn, at p. 896); the sufficiency of evidence before a grand jury (People v. Meals (1975) 49 Cal.App.3d 702, 706); failure to establish an element of the crime (Pinon, at p. 910; People v. Suite (1980) 101 Cal.App.3d 680, 689); and the bar of the statute of limitations when the issue is a question of evidence rather than pleading. (People v. Padfield (1982) 136 Cal.App.3d 281, 226-227.) “In short, a defendant ‘cannot admit the sufficiency of the evidence by pleading guilty and then question the evidence by an appeal under [Penal Code] section 1237.5 . . . .’” (Id. at p. 227, quoting People v. Brown (1971) 18 Cal.App.3d 1052, 1055.)

Here, Defendant’s argument is not well taken. The plea was not illusory, as defendant had a right to raise the issue of ineffective assistance of counsel following his guilty plea. Indeed, the California Supreme Court has held that claims of ineffective assistance of counsel may be raised in a motion to withdraw a guilty plea; in fact, many cases have raised the issue of ineffective assistance of counsel following a plea of guilty. (See, e.g., In re Resendiz (2001) 25 Cal.4th 230; In re Alvernaz (1992) 2 Cal.4th 924, 934 [ineffective assistance of counsel is enough to show good cause to withdraw a plea]; People v. Makabali (1993) 14 Cal.App.4th 847, 849 [reached the defendant’s appellate contention that special counsel, specifically appointed to investigate possible ineffective assistance by trial counsel in failing to advise of the plea’s immigration consequences, acted incompetently in refusing to file a motion to withdraw defendant’s plea].) Claims of ineffective counsel are based on “’reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings . . . .’” (People v. Shults, supra, 151 Cal.App.3d at p. 719.) As our Supreme Court explained: “Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel.” (Resendiz, at p. 239, citing Alvernaz, at p. 933; see generally Hill v. Lockhart (1985) 474 U.S. 52, 57-59 [106 S.Ct. 366, 88 L.Ed.2d 203].)

Accordingly, defendant’s promise was not “illusory.” He retained the right to appeal the ineffective assistance of counsel he claimed had led to his guilty plea. Defendant’s reliance on DeVaughn, Coleman, and Hollins is inapposite. In all of those cases, the defendants’ guilty pleas were improperly induced by unenforceable promises, such as the promise to appeal the denial of the defendant’s request for the identity of the informant (People v. Coleman, supra, 72 Cal.App.3d at pp. 292-293), the promise the defendant could appeal a motion to set aside the information pursuant to Penal Code section 995 (People v. Hollins, supra, 15 Cal.App.4th at pp. 572-573), and the promise the defendant could appeal the denial of his pretrial motion to suppress his confession as involuntarily made (People v. DeVaughn, supra, 18 Cal.3d at pp. 895-896). In addition, those cases involve reversed guilty pleas after the defendants had bargained for a certificate of probable cause to appeal specific issues that were not cognizable on appeal from a guilty plea even with a certificate. (Ibid.)

The complained-of term in defendant’s guilty plea here was not illusory, and it was cognizable on appeal.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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^[1] The factual background is taken from the preliminary hearing transcript.

^[2] Defendant did not obtain a certificate of probable cause here.