Opinion
G061560
02-23-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID DONALDRAY NEWSOME, Defendant and Appellant.
Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 19CF1008, Jonathan Fish and Thomas S. McConville, Judges. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
GOETHALS, J.
In April 2019, defendant David Donaldray Newsome was charged in an information with three felonies: count 1, attempted human trafficking of a minor (Pen. Code, §§ 664, subd. (a), 236.1, subd. (c)(1)); count 2, attempted pimping of a minor, (§§ 664, subd. (a), 266h, subd. (b)(2)); and count 3, pandering by procuring (§ 266i, subd. (a)(2)). The public defender was appointed to represent him. In July 2019, Newsome's jury trial commenced. After several days of trial, on July 22, 2019, Newsome changed his pleas from not guilty to guilty as to all three charges. As a part of that process Newsome submitted a change of plea form to the trial court pursuant to In re Tahl (1969) 1 Cal.3d 122. When Newsome entered his guilty pleas, the court indicated it intended to sentence him to three years in state prison.
All statutory references are to the Penal Code.
Sentencing was continued to September 10, 2019. On that date, the alternate defender assumed representation of Newsome. Sentencing was again continued to October 4, 2019; the alternate defender also filed a motion to withdraw Newsome's guilty pleas based on Newsome's contention that he had been coerced by his trial counsel into pleading guilty. Newsome's complaint focused largely on the fact that he would be required as a result of his guilty pleas to register as a sex offender for the rest of his life pursuant to section 290.
Newsome's motion to withdraw his guilty pleas and sentencing were thereafter continued several times and ultimately considered by the trial court on August 21, 2020. On that date, after considering testimony from Newsome, the court denied his motion to withdraw his guilty pleas and imposed the sentence it indicated at the time the guilty pleas were originally entered. Newsome appeals from the judgment entered against him as a result of the court's denial of his motion to withdraw his guilty pleas.
We appointed counsel to represent Newsome on appeal. After conducting her analysis of potential appellate issues, appointed counsel informed us in her declaration that she consulted with a staff attorney at Appellate Defenders, Inc. Counsel filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. While not arguing against her client, counsel set forth the facts of the case and asked this court to conduct its own independent review of the appellate record. Counsel also advised Newsome of his right to file a written argument on his own behalf. Newsome filed what we will characterize as a letter brief in this court on December 7, 2022.
FACTS
Newsome's appeal does not directly relate to the underlying facts of the case so we will summarize them only briefly. In a nutshell, deputies from the Orange County Sheriff's Department arrested Newsome in April 2019 for attempting to pimp, pander, and traffic a fictitious 14-year-old girl identified as M.T. The arrest occurred after an investigator from the Orange County Sheriff's human trafficking unit created M.T.'s fictitious profile on Facebook and Newsome contacted her numerous times over the course of several months. Ultimately, Newsome drove from Fresno to Orange County apparently planning to pick up M.T. at a local hotel and thereafter work her as a prostitute under his direction and control. Newsome was arrested in the hotel parking lot.
DISCUSSION
In his letter brief Newsome raises a litany of complaints about the manner in which his case was prosecuted. They include the following: (1) "arresting officer Jeff[rey] Jensen fil[ed] a false affidavit"; (2) Jensen "commi[tted] perjury by testifying falsely on the facts that happened in this case"; (3) Jensen "violated my 4th Amendment right and admitted to it in preliminary transcripts, that he searched my phone illegally"; (4) "I rec[ei]ved ineffective assistance of counsel . . . my counsel didn't challenge the truth of the affidavit and testimony from Officer Jensen"; and (5) "I believe that if the proper motions would have been filed it would [have] changed the outcome of the case."
After reviewing the extensive record in this case, we conclude that, as writer Gertrude Stein once famously observed, "there is no there there" as to any of Newsome's complaints. (Stein, Everybody's Autobiography (1937).)
First and foremost, the trial court did not err when it denied Newsome's motion to withdraw his guilty pleas. The court's analysis seems to have involved three elements: 1) the fact that Newsome executed an appropriate Tahl form when he entered his guilty pleas; 2) the colloquy the trial court had with him when he entered his guilty pleas; and 3) the court's rejection of Newsome's testimony at the motion hearing.
The "Advisement and Waiver of Rights for a Felony Guilty Plea" form (the Tahl form) executed by Newsome on the day he entered his guilty pleas ran six pages. It contained an exhaustive litany of the constitutional and statutory rights Newsome was waiving when he entered his guilty pleas to these felony charges. In executing the form he confirmed the following: "I understand each and every one of the rights set forth in the above advisement and waiver of rights form. I waive and give up each of those rights in order to enter my guilty plea. I am entering a guilty plea because I am in fact guilty and for no other reason. I declare under penalty of perjury I have read, understood, and personally initialed each numbered item above, and I have discussed them with my attorney."
As indicated, Newsome signed this form "under penalty of perjury." The form also contained a detailed, although rather unartfully written, factual basis for Newsome's guilty pleas: "In Orange County, California, on 2-28-19 to April 11, 2019, . . . I did unlawfully attempt to cause and persuade [M.T.] a person under 18 years of age, to engage in a commercial sex, with the intent to commit a felony .... On 2-28-19- April 11, 2019 I attempted to have [M.T.] who I knew to be a minor under the age of sixteen was a prostitute to with intent engage in a sex act for my financial benefit. On those dates, I procured [M.T.] to become a prostitute."
The form expressly addressed section 290 (sex offense) registration. It unequivocally informed Newsome he would be required to register pursuant to section 290 for "the rest of [his] life." He initialed the box indicating he had read and understood this condition.
On July 22, 2019, Newsome entered his plea of guilty in the middle of his jury trial. That afternoon the trial court formally addressed the contents of the plea form. The court asked Newsome whether he was "entering this guilty plea freely and voluntarily." He indicated he was. The court then asked him whether "anybody made any threats to get [him] to plead guilty." He answered "[n]o." Finally, the court asked this: "Part of the sentence that will apply is you will have to register under 290 of the Penal Code as a sexual offender for the rest of your life. [¶] Do you understand that?" Newsome responded, "Yeah."
The trial court also heard testimony from Newsome. During that testimony, Newsome essentially claimed he was coerced by his trial attorney to plead guilty. The court, after evaluating Newsome's credibility, rejected that claim, finding instead "by his own admission that Mr. Newsome understood that he had to register, and he understood it was for life." As a result, the court denied the motion.
We find no error in the trial court's ruling. To the contrary, based on this record, we agree with the court's analysis and conclude its ruling was correct.
We nonetheless address several other issues potentially raised by Newsome's letter brief. Newsome suggests the public defender's pretrial motion performance was lacking. Specifically, he opaquely references a "Pitchess motion" and a "4th Amendment" motion. In fact, the record reveals the public defender successfully litigated both a Pitchess motion and a motion to suppress evidence pursuant to section 1538.5. After an in-camera review of Officer Jensen's so-called Pitchess file, the trial court ordered that discovery related to Jensen's background be provided to the defense. And the court actually granted defendant's statutory motion to suppress evidence. We find nothing deficient about the public defender's pretrial efforts.
Finally, section 1237.5 dictates that "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Newsome's counsel filed his "Request for Certificate of Probable Cause" under penalty of perjury. It states grounds for the issuance of the certificate as follows: "Defendant seeks to appeal the denial of his motion to withdraw [his] plea, which was brought and litigated prior to the imposition of judgment." On November 13, 2020, a judge other than Newsome's trial judge issued the Certificate of Probable Cause after finding "there is probable cause for appeal from judgment of the conviction of defendant's plea of guilty."
We can find no basis for this probable cause finding in our record. It is well established that "a guilty plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt. [Citation.] It waives a trial and obviates the need for the prosecution to come forward with any evidence. [Citations.] A guilty plea thus concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt." (People v. Turner (1985) 171 Cal.App.3d 116, 125.) Likewise, "a guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility." (People v. Egbert (1997) 59 Cal.App.4th 503, 509). Finally, Strickland v. Washington (1984) 466 U.S. 668, has long required a defendant making a claim of ineffective assistance of counsel to not only establish that counsel's performance fell beneath an objective standard of reasonableness, but also that, but for counsel's failure, the defendant would have obtained a more favorable result. (Id. at pp. 669, 694.) Each of those authorities bars Newsome from relief here.
In any event, since we have considered and rejected Newsome's contention that the trial court erred in rejecting his motion to withdraw his guilty pleas, the issue has become moot.
We have examined, as we must, the entire record in this case and, like counsel, we have found no other arguable issue on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J., MOORE, J.