P. v. Ortiz

Filed 3/19/07 P. v. Ortiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Thomas De Santos, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On March 20, 2006, a criminal complaint was filed alleging appellant, Jamal Danwell Ortiz, conspired with his wife, Cynthia Morlino to offer to sell or furnish marijuana to a person held in a state prison (Pen. Code,  182, subd. (a)(1) & 4573.9, count one),^[1]Ortiz and Morlino offered to sell or furnish marijuana to a person held in state prison ( 4573.9, count two), and Ortiz and Morlino unlawfully brought a controlled substance into a state prison ( 4573, count three).

On July 20, 2006, Ortiz appeared in court and entered into a plea agreement wherein he would admit count three and the other counts would be dismissed. Ortiz would be given the three-year midterm. Ortiz was advised of the consequences of his plea and given his constitutional advisements.^[2] Ortiz waived his right to a preliminary hearing. The parties stipulated to a factual basis for the plea.^[3] Ortiz pled guilty to count three. Ortiz waived preparation of a probation report and to his right to appeal. The court sentenced Ortiz to the three-year midterm to be served consecutively to the sentence for which Ortiz was already in prison. The court imposed a restitution fine. Appellant has not obtained a certificate of probable cause.

Ortizs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Ortiz was advised he could file his own brief with this court. By letter on November 7, 2006, we invited Ortiz to submit additional briefing.

Ortiz responded with a letter asserting his plea was not knowing and intelligent because Morlinos freedom was at stake. Ortiz asserts that after a meeting with his attorney and Morlinos attorney, if he admitted the allegations, she would be granted probation. Ortiz states he is unaware of Morlinos sentence. Ortiz asserts error because the trial court severed his case from Morlinos case. Ortiz states he is unaware of his wifes whereabouts.

DISCUSSION

When the trial court took Ortizs change of plea, Ortiz told the court that he was concerned about his wife, Cynthia Morlino. Ortiz said that he was not concerned about how much time he received for his most recent offense because he was already in prison. The court explained to Ortiz that his change of plea was not contingent upon what happened to Morlino. The judge told Ortiz that he would not be the judge to sentence Morlino.

Ortiz asked the court if his change of plea hearing could be rescheduled to when his wife came to court. The court denied Ortizs request. Ortiz took the blame for the offense stating that he forced his wife to smuggle narcotics into prison and it was not her fault.

After the court advised Ortiz of the consequences of his plea and his constitutional rights, Ortiz asked the court why his case was separated from Morlinos case. The court said it severed the cases because each individual has a right to have his or her own case heard without taking into consideration the actions of codefendants. Ortiz reiterated that he wanted to take full responsibility for his conduct. Ortiz said he did not understand why Morlino had a right to a separate hearing. The court asked Ortiz whether he wanted to continue on with a preliminary hearing or if he wanted to accept the plea agreement. Ortiz accepted the plea agreement. Ortiz again stated he wanted to be with Morlino at the hearing and that she was not responsible for his conduct.^[4]

From the record, we find that Ortizs plea was knowing, intelligent, and voluntary. There is no indication that Ortizs plea was contingent on the disposition of the allegations against Morlino or that Ortiz was promised that Morlino would be present at the change of plea hearing. There is no evidence in the record to support Ortizs allegation on appeal that if Ortiz pled guilty, Morlino would be granted probation.^[5] Ortiz has failed to show that the trial court abused its discretion in severing Ortizs case from Morlinos criminal action. (People v. Cook (2006) 39 Cal.4th 566, 581.)

Finally, Ortizs assertions that he does not know of Morlinos whereabouts or the sentence she received are not grounds for legal error on appeal. A guilty plea is, for most purposes, the legal equivalent of a jurys guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636, overruled on anther ground in People v. Guerrero (1988) 44 Cal.3d 343; People v. Chadd (1981) 28 Cal.3d 739, 748.)

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^* Before Cornell, A.P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise indicated all statutory references are to the Penal Code.

^[2] Appellant waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

The parties agreed to a lid of three years eight month to appellants sentence.

^[3] The prosecutor stated that had the case proceeded to preliminary hearing or trial, the People would have introduced evidence to show that Ortiz, an inmate at Corcoran State Prison, called Morlino on March 15 and March 17, 2006, and asked her to bring marijuana into the prison. The two spoke in code. Morlino brought a usable amount of marijuana to prison on March 18, 2006. Ortiz agreed with the prosecutors factual account.

^[4] Ortizs trial counsel indicated that Morlino had already entered her own plea.

^[5] There is no way for us to evaluate this contention on direct appeal. It is elementary that the function of an appellate court in reviewing the judgment of the trial court on direct appeal is limited to a consideration of matters contained in the record of the trial proceedings. (People v. Landers (1976) 59 Cal.App.3d 846, 850.)