Opinion
E071807
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE LEE MOORE, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1500924 & INF1670097) OPINION APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Jeffrey L. Gunther and William S. Lebov, Judges. Affirmed. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Retired judge of the Sacramento Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired judge of the Yolo Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In case No. INF1500924, a jury found defendant and appellant Willie Lee Moore guilty of failing to register as a sex offender. (Pen. Code, § 290, subd. (b).) A trial court found that he had two prior strike convictions (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and one prison prior (§ 667.5, subd. (b)). The court subsequently dismissed one of the prior strikes and sentenced defendant to seven years in state prison. In case No. INF1670097, defendant entered a plea agreement and pled guilty to failing to register as a sex offender (§ 290, subd. (b)) and admitted one prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)). The court sentenced him, as agreed upon, to one year four months in state prison, to be served consecutively to the term in case No. INF1500924.
All further statutory references will be to the Penal Code, unless otherwise noted.
On December 6, 2018, defendant filed a notice of appeal, in propria persona, in case No. INF1670097 (the plea case). He challenged the validity of the plea and filed a request for certificate of probable cause, which the court granted. On December 10, 2018, he filed a notice of appeal, in propria persona, in case no. INF1500924 (the trial case). He also filed a request for certificate of probable cause, which the court denied. We affirm.
PROCEDURAL BACKGROUND
The Trial Case
On August 31, 2015, the Riverside County District Attorney (the district attorney) filed an information charging defendant with failing to register as a sex offender. (§ 290, subd. (b), count 1.) The information alleged that he had one prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and one prison prior (§ 667.5, subd. (b)). On September 13, 2016, the district attorney filed a first amended information, which added another prior strike conviction allegation. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1).) Defendant pled not guilty and denied the prior conviction allegations.
On the day of trial, defendant made a Faretta motion to represent himself and asked for a continuance. The court noted that the case was there for trial and the potential jurors were ready to come in, and defendant had no time to prepare. Defendant acknowledged that his counsel was an excellent attorney, but stated he just did not think "it would be in the best interest" to "go forth with him." Defense counsel confirmed that he was completely prepared for trial and ready to proceed. The court denied the Faretta motion as untimely.
Faretta v. California (1975) 422 U.S. 806.
Defendant elected to have a jury trial, and a jury was selected. The first witness testified. Subsequently, defense counsel indicated he wanted to make a statement to the court and said that he and defendant observed that no one on the jury panel was African-American. He acknowledged that there was "a variety in the makeup of this panel," but felt the duty to put his observation on the record. He added that "[i]t wasn't necessarily an elimination or selection of jurors contrary to any specific race or group, but inherently, the panel seemed to be lacking blacks, if you will." The prosecutor stated that the parties did stipulate to the fact that the venire was representative of the community. The court recognized that the panel was very ethnically diverse, but there were no African-Americans on the venire. The court noted there was no indication that the jury commissioner was discriminatory in the names that were chosen or that the jury commissioner even knew defendant was African-American. The court also stated its concern about the timeliness of the motion. Moreover, the court observed there were 20 peremptory challenges allowed, and many were utilized, but there were still many available to use. Furthermore, although there was an opportunity to use challenges for cause, both counsel chose not to. The court concluded there was no specific bias based on race.
On March 22, 2017, the jury found defendant guilty of failing to register as a sex offender. (§ 290, subd. (b).) In a bifurcated trial, the court found the prior conviction allegations true. It subsequently dismissed one of the prior strike convictions and sentenced defendant to seven years in state prison.
The Plea Case
On May 24, 2016, the district attorney filed a felony complaint, charging defendant with failing to register as a sex offender. (§ 290, subd. (b), count 1.) The complaint alleged that he had one prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and one prison prior (§ 667.5, subd. (b)). On September 13, 2016, the district attorney filed a first amended felony complaint, which added another prior strike conviction allegation. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1).)
On March 6, 2018, defendant entered a plea agreement and pled guilty to count 1 and admitted one prior strike conviction (§§ 667, subd. (c) & (e) and 1170.12, subd. (c)(1)). In exchange, the other allegations were dismissed. The court sentenced defendant, as agreed upon, to one year four months in state prison, to be served consecutively to the term in the trial case.
Defendant filed a motion regarding his custody credits, which the court denied on April 10, 2018.
The record on appeal does not appear to contain a copy of this motion. --------
On October 5, 2018, the court held a hearing. Defense counsel stated that the matter had been continued in order for him to file a motion to withdraw defendant's plea. However, after reviewing the record, he did not believe there were any grounds upon which to withdraw the plea; thus, he did not file a motion. The prosecutor stated she was advised that morning that defense counsel did not file a motion. The court then ordered that defendant be remanded and transported to state prison. Defendant objected, and the court noted the objection.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and two potential arguable issues: (1) whether the court abused its discretion in denying defendant's Faretta motion, made on the day of trial; and (2) whether the jury pool unconstitutionally excluded African-Americans. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. In a handwritten brief, he first contends that the district attorney confused the jurors by "mixing the facts" of the occurrence in the jury trial case with "factors and accounts of other charges and cases which were unfounded." Defendant points to no specific facts in the record to support this claim, and there is no indication in the record the jurors were confused.
Defendant next claims that his attorney rendered ineffective assistance of counsel (IAC) during the jury trial, since he made no objections and appeared to be unprepared to adequately defend him. " 'To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]' [Citation.]" (In re Roberts (2003) 29 Cal.4th 726, 744-745 (Roberts).) Here, defendant does not specify any objection his counsel should have made, and he fails to describe how his counsel was unprepared to defend him. In other words, defendant offers no basis for his claims. Moreover, our review of the record has uncovered no support for these claims. Defendant has failed to show that his counsel's performance was deficient. Thus, his IAC claim fails.
Defendant further contends that his counsel rendered IAC in the plea case by failing to advise him of all the factors behind accepting the plea bargain. In support of this claim, he asserts that he was "medically impaired" at the time of the plea and initially chose not to accept the plea deal. However, he "reluctantly consented," with the wish to be sentenced at a later date so he could gain time to reevaluate his choice. Contrary to his claim, the record shows that defendant was fully informed and freely pled guilty. Nothing in the record indicates that any factor overcame the exercise of his free judgment. Rather, it shows he understood all the constitutional rights he was waiving, the nature of the charges, and the penalties and punishments. He understood the entire plea agreement and that his sentence would be one year four months, to be served consecutive to the sentence in the trial case. Defendant initialed the box on the plea form indicating that no one had used threats or violence or placed any pressure on him to force him to plead guilty. His attorney confirmed that defendant understood his rights, that he had an adequate opportunity to discuss the case with defendant, and that defendant understood the consequences of his plea. Moreover, the court found that defendant had read and understood the plea form and was knowingly, intelligently, and voluntarily waiving his constitutional rights and entering his plea. Thus, our independent review of the record has revealed no support for this IAC claim.
Defendant also contends his counsel rendered IAC by failing to timely submit or adequately argue for him to withdraw his plea. He asserts that he asked his counsel to file a motion to withdraw his plea when "it was discovered" he would have to forfeit all presentence credits; however, his counsel failed to file a motion and "cost" him his right to adequate representation. "A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause." (People v. Weaver (2004) 118 Cal.App.4th 131, 145; see § 1018.) "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The record shows the plea agreement that defendant entered expressly stated he would not receive credit for time served. He has not alleged or shown he was operating under mistake or ignorance; thus, he has not established that there was good cause to withdraw his plea. (Ibid.) Furthermore, defense counsel reviewed the record, did not find any grounds upon which to withdraw the plea, and accordingly did not file a motion. We conclude defendant has failed to establish his counsel's performance was deficient. As such, this IAC claim fails.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. MENETREZ
J.