P. v. Johnson

Filed 11/29/05 P. v. Johnson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JOHNSON, Defendant and Appellant.

H028171 (Santa Clara County Super.Ct.No. CC309605)

This appeal was originally filed in accordance with procedures outlined in People v. Wende (1979) 25 Cal.3d 436, with appointed appellate counsel requesting this court to conduct an independent review of the record. Defendant Joseph Johnson filed his own brief raising nine specific issues, essentially charging ineffective assistance of counsel. After our review of the record, we requested supplemental briefing on two specific questions concerning the effective assistance of counsel and Penal Code section 1200. We have now considered these briefs and the arguments raised in light of the record and we affirm the judgment.

BACKGROUND

On April 4, 2003, around 10:23 p.m., Santa Clara County Deputy Sheriff Donald Morrissey saw defendant throw a plastic package out of the driver’s side window of his car. Defendant’s car was stopped and the package was recovered. It was a small piece of clear plastic with three items inside: a piece of copper Brillo-type pad, a green leafy substance and an off-white rock-like substance. The last two items proved to be marijuana and cocaine base with a total weight of .41 grams. A search of defendant’s car and person found no other contraband. Deputy Sheriff Morrissey testified that the driver’s front window was down when he pulled defendant over.

On September 11, 2003, defendant was charged by information with one count of possession of cocaine base. (Health & Saf. Code, § 11350, subd. (a).) The information also alleged that defendant had suffered a prior strike and had served a prior prison term. (Pen. Code, §§ 667, subds. (b) - (i), 1170.12, 667.5, subd. (b).)

On November 10, 2003, defendant failed to appear for a court hearing, and a bench warrant issued. Defendant was apprehended on January 7, 2004.

On March 29, 2004, defendant pleaded no contest as charged. In return, the court agreed to consider defendant’s Romero[1] motion and to sentence defendant to no more than 32 months in prison.

Defendant was released on his own recognizance (OR), but initially failed to contact pretrial services as directed. He also tested positive for cocaine. Defendant again failed to appear in court at a hearing on May 18, 2004, and a second bench warrant issued. Defendant was apprehended on September 15, 2004.

On October 19, 2004, the trial court granted defendant’s Romero motion and dismissed the strike prior. The court struck the prior prison term enhancement and sentenced defendant to two years in state prison. Defendant timely filed a notice of appeal, and the trial court granted his request for a certificate of probable cause.

DISCUSSION

Initially, the Attorney General suggests that we should summarily reject defendant’s claims of ineffective assistance of counsel based on the inadequacy of defendant’s supplemental brief. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) Although the arguments raised in defendant’s brief are essentially without record citation, case authority, or argument, we decline to summarily reject them. We will consider the issues raised in defendant’s brief and in the supplemental briefs filed by appellate counsel and the Attorney General.

“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. (In re Alvernaz (1992) 2 Cal.4th 924, 933; see generally Hill v. Lockhart (1985) 474 U.S. 52, 57-59 (Hill).) ‘It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.’ (In re Alvernaz, at p. 934, citing Hill, at pp. 56-50; McMann v. Richardson (1970) 397 U.S. 759, 771 (McMann).) [¶] To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Waidla (2000) 22 Cal.4th 690, 718.)” (In re Resendiz (2001) 25 Cal.4th 230, 239, fn. omitted.)

In the context of a guilty plea, “a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. ([Hill, supra,] 474 U.S. at pp. 58-59.)” (In re Alvernaz, supra, 2 Cal.4th at p. 934.) As the court in In re Vargas (2000) 83 Cal.App.4th 1125, explained: “[W]hen defendants claim they received ineffective assistance of counsel at the plea bargain stage, they must show that had they received effective representation, they would not have accepted the offer. [Citations.] A defendant’s statement to that effect is not sufficient. Rather, there must be some objective showing. [Citation.]” (Id. at p. 1140.)

The Supreme Court further explained the deficient performance prong of the two-prong Strickland test for ineffective assistance of counsel in the case of People v. Maury (2003) 30 Cal.4th 342: “A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Strickland[, supra,] 466 U.S. 668, 689.) Tactical errors are generally not deemed reversible, and counsel’s decision making must be evaluated in the context of the available facts. (Id. at p. 690.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)” (Id. at p. 389; see also People v. Lizarraga (2003) 110 Cal.App.4th 689, 693.) Moreover, the Supreme Court has repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) “The defendant must show that counsel’s action or inaction was not a reasonable tactical choice, and in most cases ‘ “ ‘ “the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . .” ’ ” (People v. Mendoza Tello, supra, at p. 266; People v. Wilson [(1992) 3 Cal.4th 926, 936]; People v. Pope [(1979) 23 Cal.3d 412, 426].)’ (People v. Michaels (2002) 28 Cal.4th 486, 526.)” (People v. Jones (2003) 30 Cal.4th 1084, 1105.)

In addition, “ ‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ (Strickland[, supra,] 466 U.S. 668, 697.) A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

In his supplemental brief, defendant raised nine separate claims of ineffective assistance of counsel. For defendant to prevail on appeal, he must show (1) deficient representation and (2) resulting prejudice. (Strickland, supra, 466 U.S. at pp. 687-688.) His claims of error must be supported with facts in the record. (Cal. Rules of Court, rule 14(a)(1)(C).) Here, each of defendant’s claims is stated in a single sentence without elaboration or supporting citations to the record or to relevant law. Consequently, none of his arguments reaches the level of detail required to support a charge of ineffective assistance of counsel in this appeal. (See People v. Jones, supra, 30 Cal.4th at p. 1105.) However, we discuss these arguments briefly.

First, defendant asserts that his superior court trial proceeding, as well as his rights to a fair trial, were abandoned by defense counsel on November 6, 2003. There is no further detail, and no reporter’s transcript for that hearing, thus preventing us from any evaluation of his claim.

Second, defendant states that defense counsel incorrectly advised him of his fair trial rights on the same date. Again, we have no details and no transcript.

Third, defendant claims his counsel failed or refused to file the appropriate motion on behalf of defendant after his mistaken failure to appear on November 10, 2003. Defendant does not explain that mistake but submits a copy of the minute order highlighting the “Next Appearance” line which is blank. The record shows that following his failure to appear, defendant was the subject of a bench warrant for two months.

Fourth, defendant insists that defense counsel allowed his “simple possession” case to be prosecuted differently than all other drug cases. No explanation is given.

Fifth, defendant argues he was denied effective assistance of counsel when defense counsel made a timely motion to withdraw for conflict of interest on March 2, 2004. But the record shows the motion was granted and new counsel was appointed. This claim is now moot. Defendant has not offered any further explanation of prejudice.

Sixth, defendant claims his counsel failed to challenge a motion in limine and a formal discovery motion by the prosecutor requesting a jury instruction on flight after crime. The trial court made no ruling on this request because defendant pleaded no contest and no trial was held. We fail to see how the mere request by itself caused any prejudice.

Seventh, defendant asserts that his two attorneys filed no trial preparation during his prolonged pretrial detention. But he fails to explain what “trial preparation” should have been filed and how he was prejudiced.

Eighth, defendant maintains his trial counsel incorrectly advised him prior to the hearing on March 29, 2004, that he would be eligible for a Proposition 36 treatment program. The record of that hearing shows that when the court twice asked defendant whether any promises had been made to him or any conditions to his plea, defendant answered no. Defendant also answered that he was “pretty much” satisfied with his attorney’s advice.

Finally, defendant argues trial counsel refused to assist him as he attempted to withdraw his plea at sentencing. He gives no further detail or explanation except to state that he still maintains his innocence and that he would have requested a jury trial if counsel’s assistance had been effective. He has attached to his brief three additional documents: (1) A memo from a defense investigator stating that on October 15, 2003, he examined and photographed defendant’s car, and observed that the driver side front window and the passenger side rear window were stuck in the closed position. The driver side rear window and the passenger side front window operated; (2) and (3) Defense investigator reports from September 2003 telephone conversations with two of defendant’s coworkers who each reported that the driver side window in defendant’s car did not work.

Our independent review of the record, pursuant to People v. Wende, supra, 25 Cal.3d 436, showed that during the sentencing hearing, the trial court failed to make the requisite admonishments and inquiry as specified by Penal Code section 1200. Therefore, we requested supplemental briefing from appellate counsel and the Attorney General as to whether defendant was denied the effective assistance of counsel where trial counsel failed to pursue defendant’s request to withdraw his plea at the sentencing hearing and the trial court failed to make the requisite admonishments and inquiry pursuant to Penal Code section 1200.[2]

Penal Code section 1200 provides: “When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.” This is commonly known as advising defendants of their right to allocution and encompasses a right of defendants to make personal statements in their own behalf and present information in mitigation of punishment. (See In re Shannon B. (1994) 22 Cal.App.4th 1235, 1238.)

Appellate counsel now asserts that the case must be remanded because the trial court failed to admonish defendant as required by Penal Code section 1200. Counsel acknowledges that the failure to give such admonishments is not ordinarily reversible if the defendant is represented by counsel and no prejudice appears. (See People v. Thomas (1955) 45 Cal.2d 433, 438; see also People v. Chew (1971) 16 Cal.App.3d 254, 258.) But here, according to appellate counsel, prejudice is shown by defendant’s attempt to withdraw his plea. Or, in the alternative, trial counsel was ineffective because she failed to pursue defendant’s request to withdraw his plea during the sentencing hearing.

The Attorney General responds that the trial court’s failure to admonish defendant according to Penal Code section 1200 does not require reversal because no actual prejudice is shown. In addition, the Attorney General argues that defendant’s statement he wanted to withdraw his plea was not supported by any grounds and that, if this could be considered a request to withdraw his plea, it was untimely.

Penal Code section 1018 provides for the withdrawal of a guilty plea before judgment: “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. . . . This section shall be liberally construed to effect these objects and to promote justice.” The rules concerning the withdrawal of a guilty plea are well established: “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]” (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) A plea may not be withdrawn simply because the defendant has changed his or her mind. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

For a defendant to withdraw a plea after judgment, he or she must move to set aside the judgment or file a petition for writ of error coram nobis. (See People v. Pinon (1973) 35 Cal.App.3d 120, 126, fn. 6.) The same showing of good cause by clear and convincing evidence is necessary to withdraw the plea after judgment. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.)

The reviewing court in either case assesses whether the trial court abused its discretion. “A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound discretion of the trial court” ’ and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank, supra, 16 Cal.4th at p. 1254.)

At the sentencing hearing on October 19, 2004, the trial court first ruled on defendant’s Romero motion and explained its reasons for striking the strike. The court denied probation based on defendant’s failure to appear for sentencing when it was first scheduled on May 18. Defense counsel then told the court that defendant would like to speak before sentence was pronounced. The court acquiesced, and defendant told the court that the reason he did not show up for sentencing was because he knew he would be sent to prison. When defendant finished, the court explained that defendant’s decision not to show up for sentencing meant that he prevented the court from considering any lesser punishment. The court then pronounced sentence of two years, with total credits of 198 days, and various terms and conditions of parole. There was a brief discussion between counsel and the court about a probation condition concerning driving privileges, which the court ultimately decided not to impose. During the discussion, defense counsel interrupted: “Before you finish I think I need to tell you what [defendant] just said to me, and I’m not sure how we want to proceed. He’d like to make a motion to withdraw his plea at this point. [¶] THE COURT: On what grounds? [¶] [Defense Counsel]: Your Honor, I haven’t even thought that far ahead. I don’t—I’m not sure I could represent that there are grounds at this point. [¶] [Prosecutor]: And Your Honor, I, of course, would object that it’s an untimely, unnoticed request. [¶] THE COURT: All right. I agree. [¶] [Defense Counsel]: Thank you, Your Honor. [¶] THE COURT: There are no plausible grounds. I’m going to proceed with sentencing.” The court completed the admonishments about restitution fines and other fees and then gave specific instructions about the appeal process. The court asked the defendant if he had any questions about how to appeal. Defendant replied, “I’d just like to appeal.” The court then asked if defendant had any questions about how to start an appeal, and defendant said, “Yeah, you just told me I have to file the motion to the Superior Court.” The court then gave the specific steps to file an appeal, and again solicited questions. The defendant replied no, that he had no questions about how to appeal.

Considering the transcript of this hearing and the entire record, we find no prejudicial error or ineffective assistance of counsel. First, although the trial court neglected to recite the specific words of Penal Code section 1200, the record reflects that defendant in fact had his right to allocution. Second, defendant made only a minimal request to withdraw his plea. He offered no reasons nor did he pursue the matter. Even if we broadly construe his statement to be an actual motion to withdraw his plea, he must show good cause for the withdrawal by clear and convincing evidence. (See People v. Cruz, supra, 12 Cal.3d 562, 566.) No showing of any kind was made. When defendant was later asked if he had any questions, he replied that he just wanted to appeal. He made no mention of withdrawing his plea. Finally, even if we assume error by trial counsel, defendant must still show prejudice, by demonstrable reality or objective showing. (See People v. Fairbank, supra, 16 Cal.4th at p. 1241; In re Vargas, supra, 83 Cal.App.4th at p. 1140.) Defendant has failed to show such prejudice.

On this record, we find no ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Premo, Acting, P.J.

Elia, J.

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[1] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[2] We also requested supplemental briefing on the question of whether trial counsel provided defendant with constitutionally adequate legal assistance, as required by People v. Pope, supra, 23 Cal.3d 412.)