Opinion
C082015
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH VINCENT GOCKE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MCYKCRBF15138 & MCYKCRBF15268)
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We briefly recount the facts and proceedings in accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, 124.
BACKGROUND
In September 2014, 15-year-old E.S. revealed to her boyfriend that she was sexually abused by defendant, her stepfather. The boyfriend told his mother. The boyfriend's mother reached out to E.S.'s mother and told E.S.'s mother that she needed to talk to her daughter, that her daughter had a secret. Defendant learned that E.S. had a secret and asked her what that secret was. E.S. told defendant she remembered everything and defendant asked her not to tell her mother. Defendant told E.S. that if she told the police, he would go to prison and bad things happen in prison to people who hurt kids. Defendant also told E.S. he would simply deny her allegations.
In December 2014, E.S.'s father contacted City of Mount Shasta Police Officer Rachel Abel to report that 15-year-old E.S. was sexually molested by defendant, her stepfather. A child protective services worker interviewed E.S. E.S. reported that defendant began sexually abusing her when she was seven years old and continued until she was 11 years old. She detailed multiple accounts of sexual abuse and explained that she did not report the abuse because she was afraid -- defendant threatened to kill her.
On January 30, 2015, the trial court issued a criminal protective order protecting E.S. from defendant. Among other things, that order prohibited defendant from owning or possessing a firearm, and required him to surrender them to law enforcement or sell or transfer them to a licensed gun dealer within 24 hours of the order.
While in custody, defendant contacted his stepfather and asked him to remove all the firearms from defendant's residence. Defendant also told his wife, E.S.'s mother, that his stepfather would be removing the firearms from their home.
On February 23, 2015, in Siskiyou County Superior Court, case No. MCYKCRBF15138 (case No. 138), the People charged defendant with: two counts of oral copulation of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), committing a forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1)), committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)), sending or exhibiting harmful matter to a minor (§ 288.2, subd. (a)), dissuading a witness (§ 136.1, subd. (b)(1)), and child molestation (§ 647.6, subd. (a)(1)). Appended to the charges of dissuading a witness, the People alleged defendant intimidated a witness under section 1170.15.
Undesignated statutory references are to the Penal Code.
On March 13, 2015, in Siskiyou County Superior Court, case No. MCYKCRBF15268 (case No. 268), the People charged defendant with conspiracy to commit a crime of contempt, as to owning or possessing a firearm in violation of a criminal protective order (§ 182, subd. (a)(1)) and a misdemeanor violation of a criminal protective order by owning or possessing a prohibited firearm (§ 166, subd. (d)(1)).
In January 2016, defendant entered into a negotiated plea in both cases. In case No. 138, defendant pleaded guilty to dissuading a witness by force or threat, committing a forcible lewd act on a child, and committing a lewd act upon a child. He also admitted as true the allegation that he dissuaded a witness. In case No. 268, defendant pleaded guilty to both charges.
In exchange for his plea, the People agreed defendant would serve a term of 16 years in state prison. They also moved to dismiss the remaining charges with a Harvey waiver. As part of the plea agreement, defendant waived his right to appeal except as to issues of ineffective assistance of counsel and sentencing errors.
People v. Harvey (1979) 25 Cal.3d 754. --------
At sentencing, the trial court noted the probation officer's evaluation found no sentencing possibilities that resulted in an "even 16 years." The People agreed that given the time already served, defendant's sentence for the felony convictions totaled 15 years 8 months. For defendant's misdemeanor conviction, the trial court imposed one year, to be served consecutively. The court ordered defendant to pay various fines and fees, including direct victim restitution. The court also awarded defendant 33 days of custody credit in case No. 138, and another nine days of custody credit in case No. 268.
Defendant appeals. He did not seek a certificate of probable cause. (§ 1237.5.)
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief, apparently raising several issues. Defendant contends that he is factually innocent, trial counsel was ineffective for failing to properly investigate the case and for wrongly advising him to enter into a plea agreement, and trial counsel's investigator should have recused herself for a conflict of interest. We cannot review these contentions because they are beyond the limited issues that are reviewable on appeal from a conviction following a no contest plea without a certificate of probable cause.
"Under section 1237.5, an appeal from a conviction predicated on a [no contest] plea requires a certificate of probable cause. 'Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' [Citation.]" (People v. Richardson (2007) 156 Cal.App.4th 574, 596.)
Each of these claims relate to matters that occurred before defendant entered into a negotiated plea agreement. Consequently, defendant was required to obtain a certificate of probable cause to have the claims reviewed on appeal. He failed to obtain a certificate of probable cause and thus we cannot review them.
Defendant also asks the question: "[w]hy was I arrested on [a Ramey] warrant?" When there is probable cause to arrest an individual, police may obtain a warrant to arrest that person in his or her home before criminal charges are filed, this is commonly referred to as a Ramey warrant. (People v. Ramey (1976) 16 Cal.3d 263; § 817.) The rhetorical question of "why" defendant was arrested on a Ramey warrant, however, is not a claim of legal error.
Defendant does not argue the warrant was issued without a proper showing of probable cause, but simply supposes it is because there was only hearsay evidence supporting the charges against him. If the question is thus intended only to highlight his claim of factual innocence, it is not properly before this court on appeal without a certificate of probable cause. (People v. Richardson, supra, 156 Cal.App.4th at p. 596.)
Defendant makes several references to misconduct by the police department and the prosecutor's office. He says his conviction is the result of "a very over zealous District Attorney's office, and Police Department." He also "believe[s] that the District Attorney's office and the Police Department payed [sic] a very crucial role in this deception and manipulation of justice against myself, and frankly the accuser." Defendant accuses the prosecutor's office of "overstepping their power and boundaries of Justice" and says the prosecutor "snuck" the conspiracy charges from case No. 268 into the plea deal. Defendant also believes it was unethical for the prosecutor to contact his parents directly while investigating the conspiracy charges in case No. 268.
Defendant does not, however, support his claim with any citation to the record on appeal. Nor did we find any evidence to support defendant's claims of misconduct in our review of the record. Rather, defendant's claims appear to be based solely on his personal opinions and the strong belief that he was wrongly convicted. Defendant's opinions, with no legal or factual support, are not a basis for overturning his conviction. Accordingly, this claim also fails.
Finally, defendant asks this court to reduce his sentence, decrease the limit on his custody credits for good behavior, and "amend the [section] 288 charges up or down . . . ." We cannot reduce defendant's sentence because we find no error in his sentence, we cannot change the limit on his custody credits because those limits are set by statute. We cannot amend the charges to which he pleaded no contest because he has already been convicted of those charges.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Butz, J.