Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. SCN 200122-01
Marchiano, P.J.
Defendant Jaime Aguilar appeals with a certificate of probable cause from a judgment entered on his guilty plea. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. We have reviewed the record on appeal, find no arguable issues, and affirm the judgment.
I.
Defendant and his codefendant Reggie Williams were charged by information filed November 2, 2006, with sale or furnishing of heroin (Health & Saf. Code, § 11352, subd. (a)) within 1,000 feet of a school (Health & Saf. Code, § 11353.6, subd. (b)). The information alleged that defendant had suffered two prior convictions for selling or transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) within the meaning of: Health and Safety Code section 11370.2, subdivision (a) (sentence enhancement); Health and Safety Code section 11370, subdivisions (a) and (c) (probation prohibition); and Penal Code section 1203.07, subdivision (a)(11) (probation prohibition).
San Francisco Police Officer Nicholas Chorley testified at the preliminary hearing that he was working undercover around 11:00 a.m. on October 4, 2006, when he made a controlled buy of $20 of heroin from defendant and Williams in the area of 16th and Mission Streets.
On November 3, 2006, defendant was arraigned, pleaded not guilty, and denied the special allegations.
On December 15, 2006, pursuant to a plea agreement, defendant pleaded guilty to the charged count of selling or furnishing heroin with the understanding that he would be sentenced to the midterm of four years in state prison, execution of sentence would be suspended, and he would be placed on probation for five years on the condition that he serve one year in county jail.
At the outset of the December 15 hearing, defendant asked whether his jail time could be reduced to six or nine months, and the prosecutor said, “No.” Defendant said, “Okay. Let’s get it over with, I guess, and give me what I deserve, I guess,” and the court called a recess to “make sure that you and your lawyer are square on this . . . .” When the hearing resumed, defendant was advised of the direct consequences of the plea, and the constitutional rights he would waive by entry of the plea. Before accepting the plea, the court confirmed with defendant that he had “been informed of everything [he] need[ed] to know before [making] this decision,” and that he was entering the plea voluntarily. Counsel stipulated to a factual basis for the plea, and the court found that the plea was knowingly and voluntarily made.
At the sentencing hearing on January 17, 2007, defendant stated that he wanted to withdraw his plea because there were “too many discrepancies,” and he “never had a conference [with counsel] long enough to understand the [plea] proceedings.” Conflicts counsel was appointed for defendant to investigate possible withdrawal of the plea.
Defendant moved to withdraw his plea on January 30, 2007, arguing that his remarks at the beginning of the December 15 hearing showed that he was “attempting to represent himself” in the case. Conflicts counsel filed a declaration stating that she had been informed by defendant that his relationship with defense counsel had “broken down” on the day of the plea hearing “to a point that he was attempting to represent himself at the time he was entering his plea.”
The People opposed the motion, arguing among other things that, “[b]ased on the [plea] transcript, there is simply no evidence that the defendant was without counsel” when he entered his plea.
Defendant filed a “supplemental motion” to withdraw his plea on February 16, 2007, consisting of his declaration and that of conflicts counsel. Conflicts counsel stated that she was told by defense counsel that defense counsel believed that defendant “didn’t have faith in her representation of him.” Defendant declared among other things that during the few seconds he had to speak with defense counsel before he was “called to the podium” at the plea hearing, she advised him “that the only offer on my case was a state prison offer.” His declaration continued:
“I believed based on my background that a state prison offer was unreasonable. Given that my attorney was refusing to negotiate on my behalf for a non-state prison offer, I believed that my attorney was not looking out for my best interests. Convinced that [defense counsel] did not want to negotiate my case, I began to represent myself in an effort to negotiate with the court for a better plea offer. During the course of these negotiations, the court made me a non-state prison offer. Given that I only have a high school education, I did not fully understand or comprehend the offer the court was making. Although the court granted me a minute to discuss the offer with [defense counsel], I had lost confidence in her ability to represent me and to advise me correctly. Despite the one minute meeting with [defense counsel], I did not understand or comprehend the offer the court had made me. In an effort to please the court, . . . I rushed into entering my plea, and did so without knowingly and voluntarily entering the plea.” (Paragraph breaks and numbering omitted.)
Defendant was represented by conflicts counsel on February 27, 2007, when the motion to withdraw the plea was heard and submitted for decision. The court denied the motion in a March 2, 2007, order.
When defendant appeared with his original defense counsel for sentencing on March 13, 2007, the case was referred to a different judge for a hearing on a “Marsden (People v. Marsden (1970) 2 Cal.3d 118)” and “McKenzie (People v. McKenzie (1983) 34 Cal.3d 616)” motion. At the Marsden/McKenzie hearing, defendant complained that defense counsel did not meet with him, never returned his phone calls, failed to file a motion he wanted to make, and missed court dates in his case.
Defense counsel responded that she had another attorney appear for her at defendant’s arraignment because she was in another county. Counsel said that she had missed a pretrial conference in defendant’s case, and scheduled a second one. At the second pretrial conference, the court proposed the agreed-upon disposition, in lieu of the People’s offer of a three-year state prison sentence. Defendant accepted the court’s offer against her advice: “I had a conversation of several minutes with [defendant] in which I told him that I did not think that that was a good disposition in his matter because in the long run it was my opinion he would end up doing more time if he took that disposition. Although he would not go directly to state prison, he would have the opportunity to do probation, but it was my opinion that that was not a good idea.” Defense counsel stated that her communication with defendant had “broken down entirely,” and asked to be relieved as his counsel.
The Marsden/McKenzie motion was denied, and the case was returned to the sentencing judge. At the sentencing hearing, defendant told the judge, “[Y]ou mentioned the last time, if I did good within a year, that I could come back and modify the probation, something like that.” The court responded that no such understanding was part of the plea agreement. Defendant suggested that the “ESS [execution of sentence suspended]” could be “take[n] . . . off after a while,” and the court answered, “No, that’s not going to happen, and it was never going to happen, and I never said anything like it.”
The court sentenced defendant to four years in state prison, with execution of sentence suspended, and placed him on probation for five years. Probation was conditioned on service of one year in county jail, with credit for time served of 161 days, and other conditions that were spelled out before defendant’s plea was accepted.
II.
By pleading guilty defendant admitted the sufficiency of the evidence establishing the crime, and therefore he is not entitled to review of any issue involving guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
There was no error in connection with entry of the plea, and no abuse of discretion in denying the motion to withdraw the plea (People v. Cruz (1974) 12 Cal.3d 562, 566 [good cause to withdraw plea must be shown by clear and convincing evidence]; People v. Nance (1991) 1 Cal.App.4th 1453, 1457 [ruling is within trial court’s discretion]).
Defendant was represented by counsel in all of the proceedings below, and there was no abuse of discretion in denying the “Marsden/McKenzie” motion because of deficient performance by defense counsel, or an irreconcilable attorney-client conflict. (People v. Jones (2003) 29 Cal.4th 1229, 1245 [deferential standard of review].)
There was no error in the sentencing.
III.
The judgment is affirmed.
We concur: Swager, J., Margulies, J.