Opinion
F048447
5-3-2007
THE PEOPLE, Plaintiff and Respondent, v. DRAKE DIOR WARD, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Drake D. Ward pled no contest to possessing a controlled substance (methamphetamine), being under the influence of a controlled substance, and possessing drug paraphernalia. The trial court suspended imposition of sentence and granted defendant three years probation under Proposition 36.
On appeal, defendant contends the trial court erred in denying his motion to withdraw his no contest plea on the ground that it was not voluntarily or knowingly entered because the trial court failed to advise him of a direct consequence of the plea, namely, that he would be required to serve a parole term in the event he violated his probation and was incarcerated. We reject defendants contention because in this case the possibility of parole was not a direct consequence but a collateral consequence of his plea. We also reject defendants other contentions, which arise out of pro se motions he filed while this action was pending below, and which were never expressly considered by the trial court. We conclude that because defendant was represented by counsel, the trial court properly did not consider the issues raised in his pro se motions and these issues have not been properly preserved for appellate review. Accordingly, the judgment is affirmed.
BACKGROUND
On December 7, 2004, a complaint was filed charging defendant with felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364; count 3).
On December 8, 2004, defendant appeared before Judge Quinlen and entered a plea of no contest to each count based on the understanding he would receive probation and drug treatment under Proposition 36 (Pen. Code, § 1210.1). Judge Quinlen advised defendant that he could be ordered to serve a prison term of up to three years if he violated his probation. Judge Quinlen further advised defendant that he would be required to pay a restitution fine and to register as a controlled substance offender. Defendant stated that he understood the courts advisements. Judge Quinlen then proceeded to find a factual basis for the plea based on defendants admission that on December 3, 2004, he possessed methamphetamine, was under the influence of a controlled substance, and possessed drug paraphernalia.
On December 15, 2004, defendant appeared before Judge Felice for sentencing. Judge Felice suspended imposition of sentence and placed defendant on probation for three years, subject to his successful participation in and completion of a drug treatment program pursuant to Penal Code section 1210.1.
On March 2, 2005, defendant filed a pro se motion to withdraw his no contest plea under Penal Code section 1018. In support of the motion, defendant filed a declaration stating that at the time he entered the plea in this case, his appointed attorney mistakenly informed him that the terms of his probation for a 2003 conviction of misdemeanor spousal abuse included search terms. Defendant asserted that his attorneys mistake was based on misinformation provided to her by the prosecutor.
On March 3, 2005, defendant filed a pro se motion for disqualification (Cal. Civ. Proc. § 170.1), seeking to have Judge Quinlen disqualified from hearing his motion to withdraw his no contest plea. In support of the disqualification motion, defendant declared:
"On September 17, 2004, I filed a multimillion-dollar civil lawsuit in the United States District Court in Fresno ... that alleges Kern County Sheriff Mack Wimbish, Kern County District Attorney Edward R. Jagels, Kern County Superior Court Judge John I. Quinlen, numerous Kern County Sheriffs deputies, and even Kern County Superior Court clerks are engaged in an ongoing conspiracy against my common law wife of 10-years, Jennevie Sanchez, and myself. On January 11, 2005, I lodged a First Amended Complaint (FAC)...
"At the heart of my 54-page complaint, filed on January 18, 2005, is my allegation that my co-defendant, Jennevie Sanchez and I are victims of malicious prosecution — in retaliation for my testimony against two Kern County Sheriffs deputies in a criminal hearing, and too [sic] deter my testimony in federal court against Judge John I. Quinlen and other defendants in said civil action."
On March 14, 2005, the People filed opposition to defendants motion to withdraw his plea, noting that, contrary to defendants assertion, defendant was subject to search conditions as a result of his probation for spousal abuse and thus was not misadvised by his attorney in that regard. It appears from the augmented transcript on appeal that the People were correct and that at a hearing on February 25, 2004, during which defendant was present and represented by counsel, the terms of his probation for spousal abuse were modified to include search conditions.
On June 2, 2005, defendants appointed counsel filed points and authorities in support of defendants motion to withdraw his no contest plea, arguing that defendant should be allowed to withdraw his plea because the trial court failed to advise defendant that, as a direct consequence of his plea, he would serve a parole term in addition to a prison term if he violated his probation. Defense counsel did not address the ground previously raised by defendant in his pro se filing or dispute the Peoples statement that defendants probation for misdemeanor spousal abuse contained search conditions.
In June 17, 2005, defendant filed a second pro se motion for disqualification against Judge Quinlen. Defendant again averred that he had named Judge Quinlen as a defendant in "a multi-million dollar civil lawsuit" and set forth allegations that the judge and other officials were "engaged in an on-going conspiracy" against him in retaliation for giving testimony in a 2003 criminal case against his neighbor, "which undermined the claims of the two arresting Kern County Sheriffs Department Deputies" and resulted in the dismissal of that case. Defendant also submitted supporting points and authorities in which he argued that Judge Quinlen should be disqualified under Code of Civil Procedure section 170.1. Thus, defendant argued:
"Judge Quinlen is a defendant in a pending federal lawsuit related to this case. It is a reasonable inference that Judge Quinlen has an interest in the outcome of this case, the court should recuse himself from presiding over the defendants motion to withdraw his plea of guilty, and all other proceedings of the instant case."
Defendants motion to withdraw his no contest plea was heard by Judge Quinlen on June 29, 2005. During the hearing, defendant was represented by counsel. No mention was made of defendants pro se disqualification motions, or the basis defendant personally asserted in support of being allowed to withdraw his plea. Instead, discussion focused on whether the trial court was required to advise defendant of the possibility of parole as a direct consequence of his plea.
"THE COURT: Does anybody have any points and authorities to suggest that when a person is pleading for probation, either as a result of a negotiated plea or because hes entitled to probation as a matter of right pursuant to [P]roposition 36, you must also speculate on a possible violation of probation and, thereafter, a possible prison sentence and release on parole?
"Does anybody really think thats a direct consequence of a plea?
"[DEFENSE COUNSEL]: Well, white [sic] a possible prison term is a direct consequence of the plea, the Court made that point that the possible prison term was a direct consequence.
"Now, search and seizure has always been one of the main points and authorities of Mr. Wards argument here that goes to the essence.
"THE COURT: Youre saying that he wasnt told that as a condition of probation on a charge of possessing a controlled substance that he wouldnt be required to submit to a search?
"He could have denied violation of probation, they could have sentenced him to prison right then and there. If he didnt like the search and seizure, thats the remedy — I dont want probation, because I dont want to be subject to search and seizure.
"He didnt deny probation. He accepted probation.
"[DEFENSE COUNSEL]: I dont know what he was told, because I wasnt his attorney at the time the plea was taken.
"THE COURT: He wasnt told that he would be subject to search and seizure as a condition of probation?
"[DEFENSE COUNSEL]: I think the impression he was probably given is that if you complete [P]roposition 36, the case will be dismissed.
"Now, thats not necessarily the case. If he didnt, he might be facing a prison term, which would include a condition of parole.
"Parole would include significant search terms and inquiries into his liberties in that respect, and I think that had he known about that that very well could have influenced his decision to enter the plea, and that, of course, is the reason that that admonishment is required where there is a prison sentence possibly.
"THE COURT: Well, there wasnt a prison sentence as a direct result of this plea. It would have been posed if he would have said, your Honor, I dont want to submit to a search and seizure, I refuse probation, and go ahead and maybe sentenced to jail or state prison sentence.
"But the point is he has certain remedies if he doesnt like to be subject to search and seizure, withdrawing his plea, when he understood he was going to be on probation, maybe not one of the — especially after judgment is being imposed and some barriers to be met.
"I guess with respect to the matter of People versus Drake Ward, the record is clear he made a free, voluntary, and knowing waiver of his rights to enter a plea to a charge of possession of controlled substance upon the understanding he was going to be ordered to participate in Proposition 36 probation treatment program, and there is nor reason, logical or legal, to allow him to withdraw his plea. So his motion is denied."
On July 12, 2005, defendant filed a pro se petition for writ of mandate asking this court to direct Judge Quinlen "to vacate his orders dated June 29, 2005, denying Petitioners motion to withdraw guilty plea, and to thereafter recuse and disqualify himself from this case on the grounds of bias and impartiality towards Petitioner ...." This court denied defendants petition on July 14, 2005.
Defendant filed a notice of appeal on July 15, 2005, and the trial court granted his request for a certificate of probable cause.
DISCUSSION
I. The trial court did not fail to advise defendant of a direct consequence of his plea.
Defendant contends the trial court erred in failing to advise him of a direct consequence of his plea — that he would serve a parole term in addition to a period of confinement if he violated probation — rendering the plea unknowing and involuntary. We disagree.
Prior to taking a plea in a case, the trial court is required to advise a criminal defendant of "both the constitutional rights that are being waived and the direct consequences of the plea. [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1022.) Courts have characterized direct consequences as those that are immediate, certain and automatically or inexorably flow from the conviction of the offense in that case. (People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) Direct consequences have been found to include, for example, the statutory range of punishment, probation ineligibility and a required term of parole. In contrast, defendants need not be advised of indirect, collateral or secondary consequences of a plea. (Id. at p. 1355.) Indirect consequences include those which are not certain, or depend on the happening of a future, uncertain event. (See Torrey v. Estelle (9th Cir. 1988) 842 F.2d 234, 236 ["In many cases, the determination that a particular consequence is `collateral has rested on the fact that it was in the hands of another government agency or in the hands of the defendant himself"].) For example, the possibility of an increased punishment in the event of a subsequent conviction is a collateral consequence. (People v. Crosby, supra, 3 Cal.App.4th at p. 1355.) Courts have reasoned that an enhanced punishment in a future prosecution for a yet uncommitted crime is a collateral consequence because it will only apply if the defendant is prosecuted and convicted of a future offense — a result that does not automatically follow from his plea of conviction in an earlier unrelated case.
Applying the above principles here, the possibility of defendant serving a parole term in the event he violates his Proposition 36 probation and receives a prison sentence, is clearly a collateral consequence of his plea; it does not inexorably flow from his conviction of the nonviolent drug offenses in this case but instead depends on the happening of a future event which is in defendants own hands. However, even assuming there is a strong likelihood that defendant will violate his probation, as he appears to be suggesting in his reply brief, we note it does not necessarily follow that he will receive a prison sentence. It is recognized that "`drug abusers often initially falter in their recovery," thus section 1210.1 is designed to "`give [] offenders several chances at probation before permitting a court to impose jail time." (People v. Guzman (2003) 109 Cal.App.4th 341, 347.) We have reviewed the defendants authorities, and none directly supports his position that a potential parole term was a direct consequence of his and probationary sentence.
Our conclusion that the possibility of parole is a collateral consequence of defendants no contest plea requires us to conclude in turn that the trial court correctly denied defendants motion to withdraw that plea. Because the trial court was not required to advise defendant that he might be subject to a period of parole if he violated his Proposition 36 probation, the fact defendant was not aware of the possibility is irrelevant. Defendants guilty plea is valid, i.e., knowingly and voluntarily made, despite his lack of knowledge regarding the potential parole consequence of violating his probation.
II. The trial court did not err in failing to consider the issues raised by defendants pro se motions.
Defendants other two contentions on appeal — that the trial court did not properly consider the ground he initially presented in support of his motion to withdraw his plea and that the trial court violated his due process rights by failing to consider his motions to disqualify Judge Quinlen — arise from defendants pro se filings below. We conclude that, notwithstanding defendants assertions to the contrary, the trial court did not err in failing to consider the issues defendant personally raised because, as defendant acknowledges in his reply brief, he was represented by counsel.
In People v. Harrison (2001) 92 Cal.App.4th 780, we set out the applicable legal principles as follows:
"... `[A] party who is represented by counsel has no right to be heard personally [citation].... [Citations.] A trial court may, in its discretion and upon a showing of good cause, permit a party who is represented by counsel to participate in conducting the case, but it should not do so unless it determines `that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the courts business will not thereby be substantially hindered, hampered or delayed. [Citations.] Where the party is not permitted personally to participate in conducting the case, pro se filings by that party may be returned unfiled [citation] or, if filed, may be stricken [citation].
"There is, however, one exception to the rule that motions of parties represented by counsel must be filed by such counsel: courts must `accept and consider pro se motions regarding representation, including requests for new counsel. [Citation.] Such motions must be clearly labeled as such, and must be limited to matters concerning representation. [Courts] will not consider extraneous matters even in such documents unless submitted by counsel. [Citation.]" (Id. at pp. 788-789.)
In the present case, defendants pro se motions to withdraw his no contest plea and to disqualify Judge Quinlen were not clearly labeled as pertaining to issues of the representation by counsel nor did they appear to raise these types of issues. Hence, the trial court had discretion to return the motions to defendant or simply put them in the court file and not consider it. (People v. Clark (1992) 3 Cal.4th 41, 173; People v. Harrison, supra, 92 Cal.App.4th at p. 789; see People v. Mattson (1959) 51 Cal.2d 777, 798.) It appears the court put defendants pro se motions in the file without expressly ruling on any of the issues asserted therein, and that defense counsel did not endorse defendants arguments or demand rulings thereon. Without rulings, defendant has not preserved for review the issues arising out of his pro se motions. (People v. Rowland (1992) 4 Cal.4th 238, 259.)
In his reply brief, defendant recognizes a trial court is generally not required to consider pro se filings by a defendant who is represented by counsel. However, he asserts, without supporting authority, that we should find an exception in this case because he "was shuffled from one public defender to another in his various cases in Kern County" and his experience gave him "no confidence that any defense attorney was paying more than passing attention to his cases." We decline to find an exception to the rule concerning pro se filings on the basis that different attorneys represented defendant at different proceedings or based on defendants general dissatisfaction with his experience as a repeat criminal defendant in the Superior Court of Kern County.
DISPOSITION
The judgment is affirmed.
We Concur:
VARTABEDIAN, Acting P.J.
WISEMAN, J. --------------- Notes: In his opening brief defendant faults the trial court for failing to consider either his first or second pro se motion to disqualify Judge Quinlen. Then, in his reply brief, defendant inexplicably asserts that the trial court did consider and deny his first pro se disqualification motion, and argues that this fact combined with our ruling on his petition for writ of mandate constituted "an irrefutable demonstration that the Superior Court and this court were taking his pro se filings to be serious and proper." We find defendants assertions in this regard without merit. There is no record indication that the trial court ruled on defendants pro se disqualification motions, and this courts summary denial of defendants writ petition reflects no assessment of the propriety of defendants pro se filings in the trial court.