Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. Nos.050600213, 050606947
Richman, J.
Defendant Jermaine Samuel Odom timely appeals from a June 22, 2007 judgment sentencing him to three years, eight months in state prison after he pleaded no contest in two cases to arson (Pen. Code, § 451, subd. (d)) and to resisting an executive officer (§ 69), respectively. In his request for a certificate of probable cause, Odom contended that he pleaded no contest based “on false information provided by” his appointed trial counsel, and, among other things, that his trial counsel “failed to find information and witnesses” and withheld “important information” from him.
All further statutory references are to the Penal Code unless otherwise indicated.
A certificate of probable cause was granted on September 6, 2007.
Odom’s appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. Counsel has also advised Odom of his right to file a supplemental brief, which he has not done. We have reviewed the entire record and agree with counsel’s assessment. We conclude that Odom knowingly, intelligently, and voluntarily entered into his plea agreement, that there is nothing in the record to support the contentions of attorney misconduct Odom made in his request for a certificate for probable cause, and that there is no issue warranting further briefing.
The following facts regarding the arson case (number 050600213) are from the preliminary hearing held in December 2005. In 2005, Odom had been staying with Shondra Williams at her condominium in Antioch. Formerly engaged to each other, Williams had been allowing Odom to stay with her until he “could get back on his feet.”
On the second day of the preliminary hearing, the court struck Williams’s testimony in its entirety after she invoked her Fifth Amendment right not to testify regarding potential crimes she may have committed which she had revealed to the police in the course of their investigation, such as intentionally damaging a tire on Odom’s car and striking Odom with a stick the day before the fire. Fire investigator Lisa Martinez was permitted to testify regarding Williams’s statements made to her about the circumstances surrounding the fire.
On the morning of October 1, 2005, Odom and Williams argued and then got into a physical fight. Williams left her condominium around 10:00 a.m. or 11:00 a.m., and returned at around 6:00 p.m. with two police officers, as well as a locksmith to change the locks. When Williams entered the condominium, she saw that it was “in shambles” and that “everything was upside down.” She had the locks changed, locked the condominium, and left for the night.
The following day, Williams returned to the condominium where she spoke on the phone with Odom. Williams then left to go to a nearby 7-Eleven store. There, Odom pulled his car up next to hers. Williams drove off and Odom followed her, but Williams succeeded in losing him. Later, Williams went looking for Odom at the Lowes store, which she described as Odom’s “usual spot.” She found his car there and used a kitchen knife to puncture one of his rear tires. Apparently discovering what Williams had done, Odom chased Williams as she drove away.
At various times before the fire at issue in this case occurred, there were incidents where, following arguments between Williams and Odom, Odom would bring out a gas can from his car’s trunk and take it to the patio of Williams’s condominium. Although Odom never made any verbal threats that he was going to do anything with the gas can, Williams apparently perceived this behavior as a threat. Indeed, Odom engaged in this behavior the day before the fire.
Mark Lewis lived across the parking lot from Williams’s condominium and was familiar with both Odom and Williams. Just before 11:00 p.m. on October 2, 2005, Lewis saw Odom duck behind a parked car as Lewis was pulling out of his car port. Lewis went to the drive through of a nearby Taco Bell and returned to his residence less than 10 minutes later. As he opened his car door, Lewis heard a “boom” and saw flames and smoke coming from the vicinity of Williams’s condominium.
Odom left Williams threatening voicemail messages both after the October 1 altercation and after the October 2 fire. In the messages, Odom said that he was going to “set her back, she’s going to know what it is to be—to live like him . . . .,” and said that he was “going to devote all of his time to messing . . . Williams over.”
Investigation by the Contra Costa County Fire Protection District revealed that the fire caused extensive damage to Williams’s condominium as well as to the unit above it. Based on the burn patterns and the extent of the damage, the fire inspector opined that the fire was set intentionally on the patio outside the condominium, and that it was most likely that the perpetrator used an accelerant of some sort.
No gas can was found on the night of the fire. However, about a week after the fire, Williams reported finding a gas can about 10 feet from the patio of her condominium. Another fire inspector retrieved the can. This inspector interviewed Odom, who told her about his altercation with Williams the day before the fire and about the tire puncturing incident on the day of the fire. Odom explained to the inspector that because he had been frustrated after the tire incident, he went to Williams’s condominium the night of the fire and threw a bicycle and a barbeque through the condominium’s sliding glass door leading to the patio, breaking the glass.
On January 11, 2006, the Contra Costa County District Attorney filed an information charging Odom with arson of an inhabited structure (§ 451, subd. (b)) and with felony vandalism (§ 594, subd. (b)(1)) in connection with the events of October 2, 2005. The information also alleged that Odom had suffered a prior conviction under the Three Strikes Law (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subds. (a)(1)), both in connection with a January 2, 2001 conviction for making terrorist threats (§ 422). At his arraignment the day after the information was filed, Odom pleaded not guilty.
The following facts regarding the resisting arrest case (number 050606947) are from the probation officer’s report. On December 30, 2005, Odom was in custody at the Martinez Detention Facility. A deputy sheriff there was performing a room check when he observed Odom standing on his bed with a noose around his neck. The deputy told Odom to remove the noose, but Odom refused. With the assistance of a second deputy, the deputy entered the room and told Odom to put his hands behind his back and face the wall. Again, Odom refused to comply. When the deputy then attempted to subdue him, Odom pushed the deputy away and struck him, causing the deputy to suffer a bloody nose and a scratched eye.
The June 5, 2006 information filed in the resisting case (number 050606947) charged Odom with battery upon a peace officer (§§ 242, 243, subd. (c)(2)), misdemeanor resisting, delaying or obstructing a police officer (§ 148, subd. (a)(1)), and felony resisting an executive officer (§ 69). The information also alleged that Odom had suffered a prior conviction under the Three Strikes Law (§ 667, subds. (b)-(i)), again relying on the January 2, 2001 conviction for making terrorist threats.
The following day, June 6, 2006, criminal proceedings were suspended in both cases pursuant to section 1368 so that Odom could undergo a psychiatric examination. After the examination, on August 3, 2006, criminal proceedings were reinstated based on the trial court’s finding that Odom was competent to stand trial.
Pursuant to a plea agreement, on May 7, 2007, Odom pleaded no contest in the first case (number 050600213) to an amended arson count (§ 451, subd. (d) [arson of property]) and no contest in the second case (number 050606947) to the felony resisting count (§ 69). In exchange for these pleas, the People agreed to a sentence of three years, eight months in state prison and dismissal of the arson of an inhabited structure count (§ 451, subd. (b)), as well as of all other counts and enhancements. During the hearing on the plea agreement, the court went over the terms of the agreement with Odom, who affirmed that he had read the terms of the agreement, understood it, had the opportunity to discuss it with his counsel, and agreed to its terms. At no point during the pendency of the two cases did Odom move to withdraw his plea (§ 1018), nor did he bring a Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
At the June 22, 2007 sentencing hearing, Odom reiterated to the court that he wanted to keep his plea agreement and that he did not want to withdraw his plea. In complete accord with the terms of his plea agreement, the court sentenced Odom to the total term of three years, eight months in state prison. This consisted of the upper term of three years on the arson count with a Cunningham waiver, and one-third the middle term of two years for the resisting count. The court dismissed all other counts and enhancements. The court also imposed a restitution fine of $660 (Pen. Code, § 1202.4, subd. (b)), and imposed and suspended a parole revocation restitution fine in the same amount (Pen. Code, § 1202.45). Odom received presentence custody credit for 588 actual days in custody, plus 294 days of local conduct credit, for a total of 882 days.
Cunningham v. California (2007) __U.S. __ [127 S.Ct. 856].
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.