Opinion
F050742
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. ALBERT MASON WINSTON, JR., Defendant and Appellant.
William Davies, 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, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.
INTRODUCTION
Appellant, Albert Mason Winston, Jr., was charged in a criminal complaint with felony possession of a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4), count one), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), and misdemeanor possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b), count three). Winston was allegedly in violation of probation in four other cases.
Winston was on probation for a misdemeanor battery in 2004 against his ex-wife, driving without a seatbelt in 2005, driving under the influence of methamphetamine in 2005, and being under the influence of methamphetamine in a friends apartment in 2005.
On April 19, 2006, the parties entered into a plea agreement where Winston would admit count one and violation of probation in the other four cases. Counts two and three would be dismissed along with a pending, unrelated criminal action. The parties did not agree to a specific sentence or place a lid on Winstons sentence as a term of the bargain.
The trial court obtained a waiver from Winston of his right to a preliminary hearing and advised Winston of his constitutional rights pursuant to Boykin/Tahl. The parties established and the court found a factual basis for Winstons plea. Winston waived his rights and pled guilty to count one and admitted violation of probation in the other four cases. The court dismissed the pending, unrelated criminal action and counts two and three.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
As a factual basis for the plea, Winston admitted that on April 13, 2006, he had a dagger, a stainless steal double-edged throwing knife over eight inches long, that was concealed in his pocket.
Marsden Hearing
On May 17, 2006, the date set for sentencing, Winston made a Marsden motion. Winston asserted that his trial counsel advised him to take a deal for three years and the prosecution would ask for three years. According to Winston, his attorney told him "they" were going to give him three years. Winston told the court he did not believe his possession of a knife warranted a prison sentence of three years.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The trial court advised Winston that his trial counsel owed him certain duties, including a duty to give Winston honest advice concerning his situation. The court explained that if counsel thinks the court will sentence Winston to prison for three years then he is supposed to tell Winston the truth. The court stated that trial counsel has a duty to be an advocate for Winston as best he can and to make proper arguments to the court concerning Winstons sentence.
Defense counsel, Michael Woodbury, explained he did not tell Winston whether or not to enter the plea or to take a deal for three years. Woodbury advised Winston "to take the deal because it cut eight months off his exposure." Woodbury told Winston that "because of his prior record he would probably get the three years." Woodbury further advised Winston that although he would ask for a prison term of two years, there was "an excellent chance he could get the aggravated term." When Woodbury spoke with Winston the morning of the sentencing hearing, he informed Winston of the recommendation of the probation department that Winston receive a sentence of three years.
Winston complained that he should not be going to prison for possessing a knife when he just had narcotics charges. The court asked Woodbury if there was any basis for Winston to withdraw his plea. Woodbury replied that Winston told him he wanted to withdraw his plea on the ground of misrepresentation. The court denied Winstons Marsden motion finding insufficient grounds for doing so. The court found Winstons contentions to be unfounded and that counsel was "ready, willing, and able" to advocate Winstons best interests.
Sentencing
At the sentencing hearing, defense counsel argued that Winstons offense did not involve any act of violence and he admitted the allegation at an early stage. Counsel pointed out that the only offense for which Winston was on probation that involved violence was the 2004 battery offense, but the battery was only a slap. Winstons primary history thereafter had been drug and alcohol related. Counsel requested that Winston be placed on probation, or, alternatively, that the mitigating factor of early admission of guilt outweighed the factor of a lengthy criminal record that was not very serious.
The probation officers report listed only one mitigating factor, that Winston admitted the offense at an early stage of the proceedings. The report set forth the following aggravating factors: the defendant was engaged in dangerous behavior which indicates a danger to society; the defendants prior convictions as an adult and sustained petitions in juvenile court are numerous or of increasing seriousness; the defendant was on probation when the crime was committed; and, the defendants prior performance on probation or parole was unsatisfactory.
The prosecutor argued the offense was serious because Winston was carrying a knife within 100 feet of his ex-wife, who had a restraining order against him. The prosecutor pointed out Winston had a lengthy criminal history, and more disturbingly, had a number of probation violations.
The court denied probation. The court found Winstons prior record of criminal conduct was egregious. His violations included regular violations of the law including driving under the influence, repeatedly driving with a suspended drivers license, repeated violations of probation, burglary, possession of stolen property, resisting arrest, obstruction of a police officer, a drug offense, corporal injury offenses, multiple spousal abuse cases, batteries, and trespassing. The court noted Winston appeared to be "a person for whom the rules of probation have absolutely no meaning." The court found that probation was not only inappropriate, but that the aggravating sentencing factors far outweighed the mitigating circumstances. The court sentenced Winston to prison for the upper term of three years, imposed a restitution fine, and granted applicable custody credits.
Wende Brief
Winstons appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Winston was advised he could file his own brief with this court. On September 8, 2006, we invited Winston to submit a letter stating any grounds on appeal he would want this court to consider.
Winston replied with a challenge to the effectiveness of trial counsels representation. He also filed a supplemental brief reiterating his claim of ineffective trial counsel and requesting appointment of new appellate counsel.
Request for New Appellate Counsel
Concerning the request for new appellate counsel, this court notes that the filing by counsel of a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 does not, by itself, constitute grounds to remove counsel. (Cf. People v. Wende, supra, 25 Cal.3d at p. 442.) After the filing of a Wende brief ". . . there may be practical benefits to the court and the client from counsels remaining on the case . . . ." (Ibid.) Moreover, the filing of such a brief obligates this court to conduct a review of the entire record to determine whether there are any arguable issues, which should be raised on appellants behalf. Thus, counsel for appellant has secured ". . . a more complete review for his client when he cannot find any arguable issues than when he raises specific issues, for a review of the entire record [by the appellate court] is not necessarily required in the latter situation." (Ibid.) The request for new appellate counsel is denied. The issues raised in Winstons brief are evaluated below.
Trial Counsels Effectiveness
Winston argues his trial counsel was ineffective for leading him to believe he would not receive the three-year upper term for possessing a dagger. The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsels decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Contrary to Winstons contention on appeal, it appears from the statements of his counsel during the Marsden hearing that Winston was advised by counsel prior to his change of plea that it was likely he would receive a sentence of three years if he admitted count one of the complaint. Counsel was concerned, and informed Winston that he faced an additional eight months in prison for possession of methamphetamine as alleged in count two.
There is no factual showing by Winston that his trial counsel failed to advise him of the consequences of his plea. From the transcript of the Marsden hearing, it appears that Winston was well aware of the possibility he would likely be sentenced to the three-year upper term for count one. Furthermore, Winston has not demonstrated that he would not have admitted count one. He failed to articulate a reasonable basis for seeking a motion to withdraw his plea during the Marsden hearing and has further failed to demonstrate prejudice. Winston has not shown that his trial counsel was ineffective.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.