Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 465433
SIMONS, J.
Defendant Eddie Matthew Menefee appeals his conviction by plea of no contest to sodomy (Pen. Code, § 286, subd. (c)(2)); kidnapping victim to commit sodomy (§ 209, subd. (b)(1)), and torture (§ 206.) He was sentenced to two consecutive life terms with the possibility of parole in 14 years. Counsel has advised that examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief seeking substitute appellate counsel. We conclude there are no arguable issues and deny the request for substitute counsel.
All undesignated section references are to the Penal Code.
Pursuant to a plea bargain, charges of attempted murder with personal infliction of great bodily injury (§§ 664, 187, subd. (a), 12022.7, subd. (a)), forcible oral copulation (§ 288a, subd. (c)(2)), burglary (§ 459), and robbery (§ 211) were dismissed.
Background
According to the probation report, on June 6, 2005, the 16-year-old victim was violently sexually assaulted by 16-year-old appellant. Appellant degraded and humiliated the victim physically and mentally through torture, forced oral copulation and sodomy. Appellant threatened to kill the victim, kicked him repeatedly in the face, slapped him in the face with his penis, forced him to orally copulate him, forced him into the shower, forcibly sodomized him and accompanied the victim to the victim’s house and demanded that the victim give him a stereo speaker. The victim suffered a subdural hematoma, subarachnoid bleeding and fractures of his left maxillary sinus and right orbital floor.
On January 6, 2006, the court properly denied a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) on the grounds that defense counsel had valid reasons for not providing appellant with the police report and for not consenting to the prosecution’s 18-years-to-life plea bargain offer. In March, appellant petitioned for an in camera review and production of all of his juvenile court/probation records. The probation department objected to the request as overbroad and objected to disclosure of the probation department’s “work product.” With the exception of two documents that the court properly found to be irrelevant and probation department work product, the requested documents were produced.
On March 29, 2006, appellant entered a dual plea of not guilty and not guilty by reason of insanity (NGI), and the court appointed Dr. Cushing and Dr. Schneider to evaluate him pursuant to section 1026 et seq. Both doctors concluded that appellant was sane at the time of the commission of his offenses.
On August 11, 2006, appellant withdrew his not guilty and dual NGI plea and, pursuant to a negotiated disposition, pled no contest to torture, sodomy, and kidnapping to commit sodomy. The written waiver of rights form stated that the kidnapping to commit sodomy charge would be “subject to . . . section 654 at sentencing.” It also stated a maximum punishment of 15 years to life in prison, a $10,000 fine, a mandatory restitution fine, a parole restitution fine, and victim restitution. The form also stated that appellant would not be eligible for parole until 15 actual years were served, and that in exchange for his plea, the remaining charges and a trailing juvenile case would be dismissed. The form stated that if the court declined to accept this negotiated disposition, he could withdraw his no contest plea, reenter his not guilty plea and go to trial on all the counts as originally charged.
After properly finding appellant’s plea to be knowing, intelligent, and voluntary, the court memorialized that appellant had agreed to receive a stipulated term of 15 years to life in prison. “That means you will serve a minimum of 15 years in prison” and then may apply for parole. Appellant said he understood he had no legal right to be released from prison at a particular time, and it would be up to the parole board when and if he would be released from prison. The court found a factual basis for the plea.
On September 7, 2006, appellant indicated he wanted a Marsden hearing. At the Marsden hearing, appellant stated he wanted to withdraw his plea because he did not really understand it. Appellant said he thought a 15-year sentence would be imposed, not a sentence of 15 years to life. He said he was not saying his attorney did not do a “good job,” but there was a misunderstanding with defense counsel. Appellant said there was nothing wrong with how defense counsel conveyed the plea agreement, the problem was “the way I took it.” The court properly denied the Marsden motion after determining that counsel was adequately representing appellant.
On September 11, 2006, a third Marsden hearing was held. Appellant again said there was a misunderstanding with counsel and that appellant did not understand his sentence despite reading it on the plea waiver form and counsel explaining it. Once again, the court properly denied the motion after concluding counsel was doing an excellent job of representing appellant.
The probation department’s August 31, 2006 presentence report recommended that appellant be sentenced to two life sentences with the possibility of parole. At the September 21 sentencing hearing, defense counsel stated that although appellant wanted to withdraw his plea on the ground that he did not understand what happened on the day he entered the plea, defense counsel was not filing such a motion. Defense counsel also stated he had discussed with appellant the issue of reduction of his sentence. The court stated it did not find good cause to withdraw his plea and denied any such motion. The court imposed and stayed (§ 654) the eight-year upper term on the sodomy count, and sentenced appellant to life with the possibility of parole on the torture and kidnapping to commit sodomy counts with a minimum seven-year term on each. It also stayed the life portion of the sentence on the torture count.
Following an unreported bench conference, the court noted that defense counsel and the prosecutor had pointed out an error in sentencing. The court stated, “Originally I was going to sentence you to a determinate term of eight years on the [sodomy count], and then [a] consecutive life term with a minimum of seven years. What we have agreed to is to reduce your minimum term to 14 years from the 15 years, and based on that I have stayed the eight-year sentence [on the sodomy count] pursuant to . . . section 654, and at this time I’m imposing life terms in each of [the torture and kidnapping to commit sodomy counts]. Each have a minimum seven-year term which you will serve consecutively. Those are consecutive to each other, and your minimum time will be 14 years before you’re eligible for parole. But you have two life sentences with a seven-year minimum each, and they’re served consecutively. And I believe that meets the requirements of the sentencing statute.” The court also stated appellant would be eligible for parole in 14 years. The court also dismissed the two juvenile matters, and dismissed all remaining charges. The court ordered payment of $6,530 in victim restitution, a $10,000 restitution fine, a $20 court security fee, a parole revocation fine and reserved restitution as to future amounts. The court awarded 470 actual days of credit and 70 days of conduct credit on the stayed sodomy count. No certificate of probable cause issued. No error in the sentence imposed is demonstrated.
In his supplemental brief, appellant argues that he agreed to the court’s imposition of one life term, not two. He also asserts that although his counsel agreed to the modification of his sentence, he did not agree to it. However, even if appellant did not consent to the modified sentence, he does not now assert that he should have been allowed to withdraw his plea. Appellant also requests that this court relieve attorney Candace Hale as his counsel on appeal for the following reasons: (1) she has failed to take action on or acknowledge that changes were made to his plea agreement without his consent; (2) she continually refers to the evidence against him although this “evidence” has no bearing on the issues he is appealing; and (3) she has “apparently” not reviewed the record very carefully, has taken a “lackadaisical approach” to his opening brief; is not equipped to handle this case and is unable to state the appealable issues.
Having reviewed the entire record, we cannot say appointed appellate counsel’s performance has fallen below an objective standard of reasonableness under prevailing professional norms or that counsel’s performance, or lack thereof, has resulted in any prejudice to appellant. (People v. Lucas (1995) 12 Cal.4th 415, 436; People v. Wharton (1991) 53 Cal.3d 522, 575.) Moreover, appellant has not demonstrated that an order substituting counsel is needed to prevent ineffective assistance of counsel. (See, e.g., People v. Marsden, supra, 2 Cal.3d at p. 123.) Accordingly, the request for substitute counsel on appeal is denied.
Disposition
The judgment is affirmed.
We concur. JONES, P.J. NEEDHAM, J.