Opinion
B309944
02-04-2022
THE PEOPLE, Plaintiff and Respondent, v. MOSES CLARK, Defendant and Appellant.
Moses Clark, in pro. per.; and Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA487329 Curtis Rappe, Judge.
Moses Clark, in pro. per.; and Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EDMON, P. J.
Moses Clark appeals from a no contest plea to a domestic violence-related offense. His counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), requesting that we independently review the appeal.
According to evidence introduced at the preliminary hearing, Los Angeles Police Officers Bridgette Puentes and Brett Ramirez were on patrol on the early morning of May 15, 2020. They testified that a woman flagged them down that morning and said a man had punched her in the face multiple times. She was bleeding on her mouth and around her lips, she had a small laceration on her cheek, and she was missing a tooth. Clark came outside, and the woman identified him as her assailant. The woman added that she and Clark had been in an on-and-off relationship for years and had children together. That night, they argued, and when she refused to have sex with Clark, he punched her and urinated on her. Officer Ramirez read Clark his Miranda rights, which he waived. Clark told the officers that when the victim refused to perform a sex act on him, he urinated on her. When the officers asked Clark to identify himself, he gave a fake name. During these events, protective orders were in effect against Clark.
The missing tooth resulted from a prior incident of domestic violence involving Clark.
Miranda v. Arizona (1966) 384 U.S. 436.
An information charged Clark with two counts of injuring his girlfriend after suffering a conviction under Penal Codesection 243, subdivision (e) (§ 273.5, subd. (a), counts 1 & 4); two counts of violating a domestic violence court order with a prior conviction (§ 166, subd. (c)(4); counts 2 & 5); and one count of giving false information to a police officer (§ 148.9, subd. (a); count 3). The information also alleged that Clark had four prior convictions under section 243, subdivision (e), within seven years of the current offenses as to counts 1 to 4; a great bodily injury enhancement as to count 4 (§ 12022.7, subd. (e)); two prior strikes within the meaning of the Three Strikes law; and two prior serious felonies (§ 667, subd. (a)(1)).
All further undesignated statutory references are to the Penal Code.
Clark moved to suppress any illegal confession, and the trial court denied the motion.
On November 19, 2020, Clark pled no contest to count 4, admitted that he had a prior domestic violence conviction in violation of section 243, subdivision (e)(1), dated July 24, 2019, and admitted the great bodily injury enhancement. The trial court sentenced him to seven years in prison comprised of four years plus three years for the enhancement, imposed a $300 restitution fine (§ 1202.4, subd. (b)), and imposed a $300 parole revocation fine, suspended (§ 1202.45).
Clark did not admit a factual basis for the plea, per People v. West (1970) 3 Cal.3d 595.
Clark filed a notice of appeal and requested a certificate of probable cause, which the trial court denied.
Clark's court-appointed counsel then filed an opening brief that raised no issues and asked this court to independently review the record under Wende, supra, 25 Cal.3d 436.
On December 8, 2021, Clark filed a supplemental brief that requested resentencing under Senate Bill No. 483. However, Senate Bill No. 483 (Stats. 2021, ch. 728), which became effective January 1, 2022, declared enhancements imposed under Health and Safety Code section 11370.2 before January 1, 2018, legally invalid. Clark's sentence did not include a term on such an enhancement, and therefore that new law has no applicability.
Then, on January 13, 2022, we gave Clark permission to file a second supplemental brief, raising what appear to be pre-plea issues: he was not arraigned within 48 hours of arrest, his preliminary hearing was vindictively delayed, he was denied the right to view the police officers' body cam videos and other exculpatory evidence before the preliminary hearing, the trial court failed to grant Clark's challenge to the judge for prejudice, there were problems with identification witness testimony, the trial court failed to determine the foundational admissibility of the prosecution's evidence against him, his confrontation rights were violated, his motions to recall his sentence have been erroneously and vindictively denied, and he was prosecuted twice for the same crime in violation of the double jeopardy clause.
Clark also appeared to raise a concern about his appellate counsel. To the extent he intended to make a motion under People v. Marsden (1970) 2 Cal.3d 118, to relieve counsel, it is denied as it states no grounds.
A defendant such as Clark who appeals following a plea of no contest or guilty without a certificate of probable cause may only challenge the denial of a motion to suppress evidence or raise grounds arising after the entry of the plea that do not affect the plea's validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Johnson (2009) 47 Cal.4th 668, 676-677 & fn. 3.) We have reviewed Clark's motion to suppress his statements and discern no error in the trial court's ruling denying it. With respect to sentencing or post-plea issues that do not in substance challenge the validity of the plea itself, we have examined the record and are satisfied no arguable issues exist and Clark's attorney has fully complied with the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 125-126; Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
We concur: LAVIN, J., EGERTON, J.