Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD194747, David J. Danielsen, Judge. Affirmed.
OPINION
HUFFMAN, Acting P. J.
James Joseph Fox entered negotiated guilty pleas to selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and possessing a controlled substance for sale (§ 11351). He admitted a prior conviction of possessing a controlled substance for sale. (§§ 11378, 11370.2, subd. (a).) After Fox entered the guilty pleas, he retained private counsel and the court relieved appointed counsel. Fox moved to withdraw the guilty pleas. The court held a hearing and denied the motion. It sentenced Fox to prison for the four-year middle term for selling a controlled substance, stayed sentence for possessing a controlled substance for sale (Pen. Code, § 654), and struck the prior drug conviction enhancement. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
All statutory references are to the Health & Safety Code unless otherwise indicated.
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On October 4, 2005, Fox exchanged 39 Fentanyl lozenges for $800 received from narcotics agent Scott Hunter. Because Fox entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue whether the trial court erred when it denied Fox's motion to withdraw the guilty pleas in light of: (1) Fox's trial counsel's failure to adequately inform him on a possible entrapment defense; (2) trial counsel's failure to investigate sufficiently to discover police misconduct; and (3) and trial counsel's failure to sufficiently examine Fox's mental condition.
We requested additional briefing on the question of whether the trial court erred in entering convictions of both selling a controlled substance and possessing the same controlled substance for sale. The parties do not dispute that a defendant cannot properly be convicted of both a greater offense and a necessarily lesser offense included within the greater offense. (See People v. Sanchez (2001) 24 Cal.4th 983, 987.) In their response, the People correctly point out that possession of a controlled substance for the purpose of sale is not a necessarily lesser included offense of sale of the same controlled substance. (See People v. Murphy (2005) 134 Cal.App.4th 1504, 1508.)
We granted Fox permission to file a brief on his own behalf. He has twice responded. In his first response, Fox contends: (1) he was erroneously denied discovery that prevented him from preparing for a fair trial; (2) he was erroneously denied a continuance of the preliminary hearing; (3) his motion to withdraw the guilty pleas was erroneously denied; (4) he was denied effective assistance of trial counsel; (5) Judge Gill erred in not recusing himself; and (6) the court imposed sentence on a count that had been dismissed. Fox also requested additional time to "do a better job on my own." Fox requested appointment of replacement appellate counsel, and an order augmenting the record. We granted the extension of time to file a supplemental brief and took under submission the requests for appointment of replacement appellate counsel and for an order augmenting the record.
Discovery
Penal Code section 1054.1 provides:
"The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
"(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.
"(b) Statements of all defendants.
"(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
"(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.
"(e) Any exculpatory evidence.
"(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."
At the preliminary hearing Fox claimed "a lot of discovery" was missing. The court asked Fox if he had made a discovery motion and Fox responded he had not. The deputy district attorney told the court that she had met with Fox, that Fox wanted numerous items, she asked him to put his request in writing, and Fox had not done so. When Fox offered to give the deputy a list written on a napkin, the court told him to make his request in writing. The record does not reflect a written request for discovery until after Fox entered his guilty pleas. Even if we consider Fox's allegation that he was denied the opportunity to prepare for a fair trial because the People had not provided discovery, we must affirm because Fox did not move for an order compelling discovery as required by Penal Code section 1054.5, subdivision (b). "In criminal proceedings . . . all court-ordered discovery is governed exclusively by—and is barred except as provided by—the discovery chapter . . . ." (In re Littlefield (1993) 5 Cal.4th 122, 129.) Penal Code section 1054.5 is within the discovery chapter. Having not filed a motion to compel discovery after an informal request, Fox is barred from claiming on appeal that he was denied the opportunity to prepare for a fair trial through failure of the People to provide discovery. Additionally, even if we assume Fox did not receive adequate discovery, "[o]ther than search and seizure issues . . . all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea." (People v. Kaanehe (1977) 19 Cal.3d 1, 9.)
Continuance
At the outset of the preliminary hearing Fox, representing himself, moved for a continuance. The court denied the motion for continuance, ruling that Judge Fraser had previously denied the motion. The record supports this ruling. As mentioned in the discussion on discovery, "other than search and seizure issues . . . all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea." (People v. Kaanehe, supra, 19 Cal.3d at p. 9.) After entering guilty pleas, Fox cannot claim on appeal that the trial court erred in denying his request for a continuance. (Id. at pp. 8-9.).
Motion to Withdraw the Guilty Pleas
Fox contends the trial court erred in denying his motion to withdraw the guilty pleas. Courts may permit withdrawal of a guilty plea upon a showing of good cause. (Pen. Code, § 1018.) Good cause is shown where the plea was entered as a result of mistake, ignorance, inadvertence or overreaching. (People v. Urfer (1979) 94 Cal.App.3d 887, 892.) In People v. McCrory (1871) 41 Cal. 458, 462 the Supreme Court stated, "[W]hen there is reason to believe that the plea has been entered through inadvertence, and without due deliberation, . . . the Court should be indulgent in permitting the plea to be withdrawn." However, the Supreme Court also noted a "party should not be allowed to trifle with the Court by deliberately entering a plea of 'guilty' one day and capriciously withdrawing it the next," and concluded that the decision to allow withdrawal of a guilty plea rests in the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly demonstrated. (Ibid.)
In his motion to withdraw the guilty pleas, Fox argued that he was unaware he had an entrapment defense when he entered the pleas, his counsel did not understand the entrapment defense, and he was on a mission of mercy when he facilitated the sale of drugs. The record does not reflect an abuse of discretion in denying Fox's motion to withdraw the guilty pleas, given the testimony in the preliminary hearing, the trial court's authority to disregard claims made in declarations provided by the defense (see People v. Caruso (1959) 174 Cal.App.2d 624, 636), the testimony of Fox's trial counsel at the hearing on the motion to withdraw the guilty pleas, and the trial court's authority to disbelieve Fox and find his trial counsel credible (See People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684).
Assistance of Counsel
In his motion to withdraw the guilty pleas, Fox alleges that (1) his trial counsel failed to adequately inform him on a possible entrapment defense; (2) trial counsel failed to investigate sufficiently to discover police misconduct; and (3) trial counsel failed to sufficiently investigate Fox's mental condition. Regarding trial counsel's advising Fox of a possible entrapment defense, at the hearing on the motion to withdraw the guilty pleas, Fox's trial counsel testified that she and Fox specifically and thoroughly discussed the entrapment defense. Fox claimed the discussion did not take place. The trial court found Fox's trial counsel credible and disbelieved Fox. Regarding investigation of possible police misconduct, Fox's appellate counsel mentions taped conversations that would develop a theory of entrapment. In his motion to withdraw the guilty pleas, Fox claimed that he was entrapped by law enforcement, including an undercover agent he refers to as "Joe." He claimed that his trial counsel did not even listen to tapes of conversations Fox had with Joe that underlie a possible entrapment defense or that the conversations were not taped. When reviewing an appeal, we are limited to the trial court record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Because the court believed Fox's trial counsel, the record does not support the claim that Fox was denied effective assistance of counsel before he entered the guilty pleas through failure to adequately investigate police misconduct. Similarly, the record does not support Fox's claim that his trial counsel was ineffective before Fox entered the guilty pleas through failure to adequately investigate his mental condition. Even if competent trial counsel could have looked further into this issue, the record does not support a showing of prejudice through failure to do so. Fox was not denied effective assistance of trial counsel.
Recusal of Judge
Fox peremptorily challenged Judge Gill after Judge Gill refused to recuse himself because of an alleged conflict of interest. Judge Gill had previously been the judge in an unrelated case that was reversed on appeal. Fox argues that Judge Gill, the judge assigned to handle Fox's case for all purposes, should have recused himself because he had previously imposed a sentence on Fox in an unrelated criminal matter that was reversed. "A reversal on appeal does not disqualify a judge, nor is it evidence of bias or prejudice." (People v. Keller (1966) 245 Cal.App.2d 711, 714.)
Dismissed Count
Fox claims he was initially charged with selling a controlled substance (count one) and possessing a controlled substance for sale (count two.) He claims that count one was dropped at the preliminary hearing. He is mistaken. We have reviewed the transcript of the preliminary hearing. At the close of the preliminary hearing the court found sufficient evidence to hold Fox over on the crimes charged in the complaint. Fox was charged with selling Fentanyl and possessing Fentanyl for sale.
Matters Taken Under Submission
Request for Appointment of Replacement Appellate Counsel
Failure of appellate counsel to "to raise crucial assignments of error, which arguably might have resulted in a reversal," deprives an appellant of effective assistance of appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202-203.) We have reviewed the record and have determined there is no arguable issue that might have resulted in a different outcome had Fox had different appellate counsel.
Request to Augment the Record
Fox requests we order the record augmented with the reporter's transcript of the hearing at which Judge Fraser denied his request for a continuance and a missing portion of the preliminary hearing transcript.
We will order the record augmented when a defendant shows with "some certainty how materials not included in the normal transcript may be useful to him on appeal." (People v. Hill (1967) 67 Cal.2d 105, 124.) Because Fox is precluded from challenging on appeal the denial of the motion for continuance, a record of what transpired at the hearing in which the court denied the motion will not be useful to Fox on appeal.
Fox claims that portions of the preliminary hearing transcript are missing. As an appellate court, we are limited to the record before us. (People v. Jackson, supra, 230 Cal.App.2d at p. 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Fox wishes to provide information to a reviewing court that is not in the record, he must do so by a habeas corpus petition filed in the trial court.
Second Supplemental Brief
In his second supplemental brief, Fox contends the trial court violated 18 United States Code section 3553 in imposing the four-year prison sentence; the four-year sentence is inconsistent with the three-year sentence that was part of the plea agreement; the trial court erred in refusing to hear evidence in support of a commitment to the California Rehabilitation Center (CRC); the trial court erred in refusing to accept a motion to set aside the sentence; and the sentence was too harsh.
18 United States Code Section 355318 United States Code section 3553 is a federal statute. It does not apply to California's state courts.
Sentence Consistent With the Plea Agreement and Harshness of Sentence
There was no deal with the district attorney when Fox entered the guilty pleas. The court advised Fox, "I have promised you nothing other than to give you a full and fair sentencing hearing, and I have promised to take into consideration and make some adjustments on your sentence, because you have already done two years in prison that you really didn't need to do, and I am aware of that situation." The court advised Fox he could receive a maximum sentence of eight years in prison. When the court asked Fox, "You know that you are going to prison, right?," Fox answered, "Yes, your Honor."
The possible sentence for violation of Health and Safety Code section 11352 is three, four or five years. Penal Code section 1170, subdivision (b) provides in part:
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime."
California Rules of Court, rule 4.420(b) provides in part:
"Circumstances in aggravation and mitigation must be established by a preponderance of the evidence. Selection of the upper term is justified only if, after a consideration of all the relevant facts, circumstances in aggravation outweigh the circumstances in mitigation."
Determination as to the appropriate term is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms. [Citation.]" (People v. Roe (1983) 148 Cal.App.3d 112, 119.) One factor alone may warrant imposition of the upper term (People v. Kellett (1982) 134 Cal.App.3d 949, 963), and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation (People v. Salazar (1983) 144 Cal.App.3d 799, 813). Here, the trial court struck the three-year enhancement for a prior drug sale conviction and imposed the middle term after discussing aggravating and mitigating factors. "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] . . . [I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational," a discretionary determination should not be set aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72.) Here, the trial court did not abuse its discretion in striking the prior drug sale enhancement and imposing the middle term.
Refusing to Hear Evidence in Support of Commitment to CRC
At the outset of the sentencing hearing, Fox's counsel told the court he was not prepared to proceed with sentencing. The court found no good cause for a continuance and stated a tentative sentence. While discussing factors in mitigation, Fox's trial counsel told the court he had spoken with a professor whom he expected to testify that a motorcycle accident seriously affected Fox. He did not ask the court to allow the possible witness to appear before the court, nor did he ask to present any other witness. A judgment is presumed correct and the burden is on the appellant to show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Fox has not carried the burden regarding a claim that the trial court did not permit him to present witnesses.
Motion to Set Aside the Sentence
When reviewing an appeal, we are limited to the record before us. (People v. Jackson, supra, 230 Cal.App.2d at p. 490; People v. Roberts, supra, 213 Cal.App.2d at p. 394.) There is no motion to set aside the sentence in the record. In fact, a defendant lacks standing to initiate a motion to recall a sentence. (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.