Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06-2005, 06-5079, 04-1428
BUTZ, J.
Sentenced to an aggregate term of four years four months in state prison, defendant Gustavo Zavala appeals. Defendant’s appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and defendant filed a supplemental brief. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2004, law enforcement responded to a call of a man sleeping in a truck and found defendant. They also found a baggie containing 4.5 grams of methamphetamine in the truck. In case No. 04-1428, defendant entered a negotiated plea of no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in exchange for dismissal of the remaining charges and allegations (vehicle theft, receiving stolen property, and an on-bail enhancement) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. Defendant also admitted violating misdemeanor probation in case No. 03-6179. In case No. 04-1428, the court suspended imposition of sentence and granted Proposition 36 probation for a term of three years.
Subsequently, defendant admitted violating probation on two separate occasions and each time the court reinstated him on probation.
On March 30, 2006, law enforcement stopped a car for a traffic violation. Defendant was the driver. The passenger in the car stuffed something under the seat. A search of the car revealed 3.6 grams of methamphetamine and a scale with methamphetamine residue. Defendant’s wallet contained a baggie with 0.04 grams of methamphetamine. In case No. 06-2005, an information charged defendant with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of drug paraphernalia, a misdemeanor (Health & Saf. Code, § 11364), and destroying or concealing evidence, a misdemeanor (Pen. Code, § 135). A declaration to revoke probation in case No. 04-1428 was filed based in part on the new charges.
Undesignated statutory references are to the Penal Code.
On August 17, 2006, law enforcement responded to a report of a car stolen from a parking lot near an apartment complex. Officers found defendant in the car in a parking lot at a department store. Documents related to the stolen car were found on defendant’s person. Defendant initially claimed that he was holding the documents for a friend. He later admitted that he had stolen the car. In case No. 06-5079, a complaint charged defendant with theft or unauthorized use of a motor vehicle (Veh. Code, § 10851, subd. (a)).
On October 3, 2006, defendant entered a negotiated plea of no contest to transportation of methamphetamine (case No. 06-2005) and theft or unauthorized use of a vehicle (case No. 06-5079) and he admitted violating probation (case No. 04-1428) in exchange for dismissal of the remaining counts and other cases (case Nos. 06-3331, 06-3725) and a sentencing lid of four years four months in state prison.
Having retained new counsel, defendant filed a motion to withdraw his plea on April 5, 2007. Although acknowledging he had been advised in writing, defendant argued that the oral advisement of rights was inadequate. The court denied the motion and sentenced defendant to state prison for an aggregate term of four years four months as follows: the midterm of three years for transportation of methamphetamine (case No. 06-2005), a consecutive one-third the midterm or eight months for theft or unauthorized vehicle use (case No. 06-5079) and a consecutive one-third the midterm or eight months for possession of methamphetamine (case No. 04-1428).
Defendant appeals. He did not request a certificate of probable cause (§ 1237.5).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief. He contends: (1) on October 3, 2006, when he entered his negotiated plea, he was “suffering from a[n] unstable Bipolar Mental Condition” and was receiving treatment; (2) his then attorney knew defendant was suffering from “Manic Depression, Attention Deficit and Hyperactive Disorder and an unstable Bipolar Mental Condition”; (3) defendant claims he never committed the offense charged in case No. 06-5079 (theft or unauthorized vehicle use) but his then attorney coerced defendant into accepting the package deal which included such offense; (4) his retained attorney filed a motion to withdraw his plea but on a ground other than his mental condition and desire to renegotiate the plea deal to exclude the charge in case No. 06-5079; (5) defendant claims he was suffering from the same mental condition at sentencing, which the judge recognized on the record but failed to conduct a hearing on his competency; (6) his retained attorney rendered ineffective assistance in failing to file a request for a certificate of probable cause asserting defendant’s mental condition and prior counsel’s ineffective assistance; (7) the trial judge may have granted a certificate of probable cause if reminded of his statements on the record; and (8) defendant requests a writ of mandate to compel the superior court to issue a certificate of probable cause.
Defendant requests that this court remand the case to allow him an opportunity to withdraw his plea, for renegotiation of the plea to exclude the charge in case No. 06-5079, for resentencing, for permission to file three amicus curie briefs or, in the alternative, to grant his motion to expand the appointment of appellate counsel to assist him in preparing a writ of mandate to compel the superior court to issue a certificate of probable cause.
DISCUSSION
I. Defendant’s First Four Claims Are Noncognizable on Appeal
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal.” (People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez).) Issues which may be raised without a certificate of probable cause include: “(1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
Defendant’s first four claims are noncognizable on appeal because defendant failed to obtain a certificate of probable cause. Defendant claims that (1) he was suffering from a mental condition when he entered his plea; (2) his attorney knew of his unstable mental condition; (3) he never committed theft or unauthorized use of a vehicle but his attorney coerced defendant into accepting the negotiated plea, which included this offense; and (4) his attorney’s failure to file a motion to withdraw the plea on the ground of his mental condition and desire to renegotiate the plea deal was ineffective assistance of counsel.
All of these claims attack the validity of the plea. Defendant is claiming that the plea is defective because the plea was improperly induced or that he did not have the mental capacity at the time of his no contest plea or that there was ineffective assistance of counsel in seeking to withdraw the plea. Without a certificate of probable cause, defendant is barred from raising these issues on appeal. (See People v. DeVaughn (1977) 18 Cal.3d 889, 896; People v. Ribero (1971) 4 Cal.3d 55, 63; People v. Laudermilk (1967) 67 Cal.2d 272, 281-282; People v. Turner (1985) 171 Cal.App.3d 116, 127-128, fn. 8.) Even with a certificate of probable cause, defendant is barred from claiming he did not commit the theft or unauthorized vehicle use offense because a guilty/no contest plea “waives any right to raise questions regarding the evidence,” “constitutes an admission of every element of the offense charged[,] constitutes a conclusive admission of guilt” and “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt.” (Turner, supra, at p. 125.)
II. Trial Court Did Not Err in Failing to Conduct a Competency Hearing
Defendant claims (5) he was suffering from a mental condition at sentencing but the trial court failed to conduct a competency hearing. This postplea issue does not challenge the validity of the plea and is cognizable on appeal absent a certificate of probable cause. We reject defendant’s claim.
The probation report recounted defendant’s statement that he had been diagnosed as bipolar and was taking medication and under treatment. At sentencing, defendant’s attorney claimed defendant had dual problems, mental health and drug addiction, and requested a residential drug treatment program or, in the alternative, a commitment to California Rehabilitation Center (CRC), which is managed by the Department of Corrections and Rehabilitation. (§ 5003, subd. (j).) The prosecutor opposed both, noting defendant’s criminal history and commenting that defendant claimed to be a drug addict and “recently discovered he’s bipolar.”
The court determined that defendant would be ineligible for CRC based on excessive criminality. The court was willing to make a recommendation that defendant participate in drug counseling in state prison. After an off-the-record discussion, defendant’s attorney stated, “My client is again asking me to emphasize to the Court that there are long-term drug programs in Sacramento that would be available to him.” The court concluded that it was “too late” and “not appropriate” based on defendant’s criminal record. Defendant’s attorney then requested something less than the sentencing lid of four years four months recommended by probation, either concurrent terms or the low term. The court responded, “It would be a gift if I did that, given his record, given his history.”
The court followed probation’s recommendation in sentencing defendant to state prison for the sentencing lid of four years four months. After advising defendant that he could return to prison for any parole violations, the court asked if defendant understood. Defendant answered negatively. The court explained again about parole and asked if defendant understood. Defendant claimed, “I’m not like--it’s all not computing in here.” Defendant denied that he was under the influence of drugs when the trial court asked. The trial court commented that defendant was very fidgety and “[his] eyes [were] not focusing very well” and asked if he was “okay.” Defendant answered that he was “just stressing over the whole situation, sir.” The court stated that it understood. The court then advised defendant of his right to appeal. Defendant stated that he “[s]ort of” but did “[n]ot really” understand his appeal rights. The court explained again and defendant’s attorney stated that he would file the notice of appeal.
“‘Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and . . . a rational as well as a factual understanding of the proceedings against him.’” [Citations.]
“‘Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. [Citations.] . . . Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.]’ [Citation.] But to be entitled to a competency hearing, ‘a defendant must exhibit more than bizarre . . . behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]’ [Citation.]
“‘A trial court’s decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. [Citations.] The failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence, however, requires reversal of the judgment of conviction. [Citations.]’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 524-525.)
Here, there was no substantial evidence of defendant’s incompetence to be sentenced. Defendant’s attorney never expressed a doubt as to defendant’s competence. Rather, defendant’s attorney simply noted that defendant had been newly diagnosed as bipolar in requesting residential treatment. There was no opinion by a psychologist or psychiatrist that defendant was incompetent. The trial court never expressed a doubt as to defendant’s competence. The trial court noted that defendant seemed fidgety and unable to focus after he had been sentenced to state prison for four years four months and asked if defendant was under the influence of drugs. Defendant stated that he was not under the influence of drugs but instead was “just stressing over the whole situation, sir.” There was no evidence that defendant lacked the mental capacity at the time he was sentenced to consult with his attorney with a reasonable degree of rational and factual understanding. Indeed, the record reflects an off-the-record discussion after which defendant’s attorney stated, “My client is again asking me to emphasize to the Court that there are long-term drug programs in Sacramento that would be available to him.” Such reflects that defendant understood the proceedings and was able to assist his attorney. Any mental condition defendant may have been recently diagnosed with had no bearing on the question of whether he could assist his attorney. The trial court observed defendant during sentencing and did not express a doubt as to defendant’s competence. The trial court did not err in not declaring a doubt as to defendant’s incompetence or in not conducting a competence hearing.
III. Defendant’s Retained Counsel Was Not Ineffective
Defendant claims that (6) his retained attorney rendered ineffective assistance in failing to request a certificate of probable cause on the grounds of defendant’s mental condition at the time of the plea and prior counsel’s ineffective assistance. He cites section 1240.1, subdivision (b). This is a postplea issue and is cognizable.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) If the record fails to show why counsel acted or failed to act as claimed, the contention on appeal is rejected unless counsel failed to provide an explanation when asked or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Pope (1979) 23 Cal.3d 412, 426.) Counsel is not required to undertake futile or frivolous actions. (See People v. Constancio (1974) 42 Cal.App.3d 533, 546.)
Section 1240.1, subdivision (b) states that it is the attorney’s duty to designate the record and file a notice of appeal that sets forth a brief statement of points to be raised, based either on the attorney’s judgment that they should be pursued or where defendant has directed such issue to be pursued.
Here, the record does not reflect that defendant’s retained attorney filed a request for a certificate of probable cause. Nor does the record reflect that defendant by himself requested a certificate of probable cause. The notice of appeal listed two issues: the trial court’s denial of the motion to withdraw the plea and the trial court’s imposition of the sentencing lid. The notice of appeal designated the record on appeal to include the proceedings on the change of plea, the motion to withdraw the plea, and sentencing. Defendant argues his retained attorney rendered ineffective assistance in failing to request a certificate of probable cause on the grounds of defendant’s mental condition at the time of the plea and prior counsel’s ineffective assistance; neither issue was listed in the notice of appeal. There is no indication in the record that defendant directed counsel to list these issues in the notice of appeal. Nor is there any indication in the record that retained counsel believed such issues should be pursued on appeal.
Section 1240.1, subdivision (d) provides that an attorney’s failure to perform the duty in subdivision (b) “shall not foreclose [the] defendant . . . from raising any point or argument on appeal; . . .” A defendant may comply with section 1237.5 “either by himself or through another, even if his counsel does not do so on his behalf. But we do not believe that it allows him not to comply without suffering the consequences.” (Mendez, supra, 19 Cal.4th at p. 1100, fn. 10.)
Defendant has failed to demonstrate that retained counsel’s performance was deficient in failing to request a certificate of probable cause asserting defendant’s mental condition and prior counsel’s ineffective assistance.
Defendant does not specifically argue that retained counsel rendered ineffective assistance in failing to file a request for a certificate of probable cause in order to challenge the trial court’s denial of his motion to withdraw the plea. The notice of appeal listed the denial of the motion to withdraw the plea as one of the issues and designated the corresponding record; such issue would be cognizable on appeal only with a certificate of probable cause. We reach the issue to forestall a claim of ineffective assistance of counsel. Counsel may have concluded that a request for a certificate on such ground would have been futile in that the trial court would have denied the request. Counsel is not required to undertake futile actions.
In the interest of judicial economy, we do so without having requested supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
Even assuming counsel’s performance was deficient for failing to request a certificate of probable cause in order to challenge the denial of the motion to withdraw the plea, there is no prejudice. The motion to withdraw the plea was sought on the grounds that “the record fails to demonstrate that the defendant knowingly and intelligently waived his Boykin[/]Tahl rights.” Defense counsel argued that the trial court failed to orally advise and obtain such waivers at the entry of plea hearing. At the motion to withdraw hearing, defense counsel acknowledged that the written plea form reflected that defendant waived his constitutional rights.
Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
The court reviewed the motion to withdraw and the change of plea transcript. The court noted that it had questioned defendant about the plea form and obtained his confirmation that he had reviewed it with his attorney, understood it, and no one had made any other promises. The plea form reflects defendant’s waiver of his constitutional rights and that his attorney had explained such rights to him. The court concluded that defendant had waived his rights, and denied the motion to withdraw his plea.
Boykin held that a silent record cannot support the conclusion that a guilty plea had been voluntarily entered and that a defendant knowingly and intelligently waived his constitutional rights to a jury trial, to confront and cross-examine witnesses and against self-incrimination before pleading guilty to a crime. (Boykin, supra, 395 U.S. at pp. 242-244 [23 L.Ed.2d at pp. 279-280].) Tahl noted that Boykin did not expressly require an on-the-record waiver but Tahl imposed the requirement, determining that it was “a fair inference from the [Boykin] opinion” and “the only realistic means of assuring that ‘the judge . . . leaves a record adequate for any review that may be later sought.’” (Tahl, supra, 1 Cal.3d at p. 132.) People v. Howard (1992) 1 Cal.4th 1132 reconsidered Tahl and held that “a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances” even where the record fails to reflect an express advisement and waiver of rights. (Howard, supra, at p. 1175; see also id. at pp. 1175-1179.)
The record reflects that defendant waived his constitutional rights in the plea form and that he understood the form and discussed it with counsel. Under the totality of the circumstances, defendant’s plea was valid because the record reflected that it was voluntary and intelligent. There is no prejudice from counsel’s failure to request a certificate of probable cause; the challenge to the trial court’s denial of the motion to withdraw the plea would have been rejected as meritless.
IV. Defendant’s Remaining Claims Fail
Defendant claims (7) the trial court would have granted a request for a certificate of probable cause “if it was reminded of the Judge[’]s statements [at sentencing about defendant not focusing, etc.].” This claim is speculative and rejected.
In claim (8), defendant requests a writ of mandate to compel the superior court to issue a certificate of probable cause. Any request for a writ of mandate to compel the superior court to issue a certificate of probable cause must be filed by appointed counsel. Defendant also requests that this court expand the appointment of counsel to assist him in preparing a writ and grant him permission to file amicus briefs. In a separate letter, this court returned defendant’s motion to expand the appointment of counsel and his motion for permission to file three amicus briefs, explaining that filings had to be done through appointed counsel.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., NICHOLSON, J.