Opinion
A131808
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. CAROLINE ALONSO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR560042)
Defendant Caroline Alonso appealed after she was placed on probation following her plea to various charges in connection with the taking of two vehicles. Her counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find no arguable issues and affirm.
Defendant's notice of appeal, which apparently was prepared without the assistance of an attorney, challenged only the validity of her plea. The trial court granted defendant's request for a certificate of probable cause, and her appeal is thus authorized by Penal Code section 1237.5. (See also Cal. Rules of Court, rule 8.304(b)(1).) We have reviewed the entire record in this case in our discretion and in the interest of justice, and have not limited our review to the sole issue raised in defendant's notice of appeal.
Defendant was charged by consolidated information with two counts of felony unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)—counts 1, 4), two counts of felony receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)—counts 2, 5), and one count of misdemeanor possession of burglar tools (Pen. Code, § 466—count 3), after she drove a pickup truck and a van (both of which had been reported stolen) on April 15, 2009, and made incriminating statements to police about her actions.
At the preliminary hearing, defendant objected that her statements were inadmissible, because police questioning violated Miranda v. Arizona (1966) 384 U.S. 436. The trial court overruled the objection after hearing testimony that defendant was not in custody when police asked her investigatory questions. (Stansbury v. California (1994) 511 U.S. 318, 322.)
At a readiness conference on March 5, 2010, the trial court held a hearing outside the presence of the district attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118, after defendant expressed dissatisfaction with her attorney, and claimed that an attorney who occasionally filled in had pressured her to change her plea, against her will. The trial court denied the Marsden motion after defense counsel stated that he was prepared to proceed to trial despite his concerns about the strength of the case against defendant, and the court told defendant that she could discuss with her attorney whether she wanted to waive her right to a jury trial. (People v. Dickey (2005) 35 Cal.4th 884, 917 [denial of Marsden motion not abuse of discretion where record does not demonstrate that counsel was providing inadequate representation, or that counsel and defendant had become embroiled in such an irreconcilable conflict that ineffective representation likely to result].)
Trial was scheduled to begin on March 10, 2010, and defendant's counsel stated that morning that he was ready to proceed even though he had concerns that "the case should not go to trial under any circumstances." The trial court answered defendant's questions about her rights outside the presence of the prosecutor, and permitted time for her to speak with her attorney before prospective jurors were called to the courtroom. When the case was recalled after a break, the trial court assured defendant that, if she proceeded to trial, "I'll make sure that you get the best, fairest trial I can give you, that will include making sure that [your attorney] brings out everything that's of help to you in this case."
By order dated December 22, 2011, this court denied defendant's motion to allow her appellate counsel access to the sealed transcript of the conversation outside the prosecutor's presence.
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Defendant waived her right to a jury trial; however, her attorney did not join in the decision, and the prosecutor stated that the People did not waive the right to a jury trial. (Singer v. United States (1965) 380 U.S. 24, 36 [consent of prosecuting attorney necessary for defendant's waiver of jury trial]; People v. Peace (1980) 107 Cal.App.3d 996, 1007 [defendant does not have constitutional right to waive jury trial over counsel's objection].) Prospective jurors were then called into the courtroom, but were asked to leave shortly thereafter following an unreported bench conference. Defendant executed a change of plea form, and pleaded no contest to the felony vehicle theft counts and the misdemeanor possession of burglar tools count (counts 1, 3, and 4), in exchange for the dismissal of the other charges, and an indicated sentence of no state prison.
Sentencing was delayed, first because defendant did not appear for her scheduled sentencing hearing, and then because proceedings were suspended while defendant's mental health was evaluated after her attorney requested the evaluation (Pen. Code, § 1368), apparently in part based on defendant's behavior when she was taken into custody on October 9, 2010. The trial court found defendant incompetent to proceed with criminal proceedings after a psychologist evaluated defendant and submitted a report, then later reinstated criminal proceedings after finding, based on a subsequent report, that defendant's competency had been restored. No error appears in the proceedings regarding defendant's competency. (People v. Weaver (2001) 26 Cal.4th 876, 904-905 [defense attorney may validly submit competency determination based on available psychiatric reports].)
At a hearing on December 30, 2010, defendant's attorney (who had been appointed after defendant entered her plea) stated that defendant had asked about whether she could withdraw her plea, and reported that counsel would discuss the matter further with defendant. At a hearing on January 7, 2011, defendant stated that she did not plan to file a motion to withdraw her plea, and the court set the matter for sentencing, after defendant validly waived her right to be sentenced by the same judge who took her plea. (People v. Arbuckle (1978) 22 Cal.3d 749.)
On February 7, 2011, the trial court suspended imposition of sentence, and placed defendant on supervised formal probation for a period of three years, subject to various terms and conditions. The court also dismissed counts 2 and 5, pursuant to the plea agreement.
No error appears in the entry of defendant's plea or in the sentencing proceedings. Defendant was advised of her constitutional rights prior to the entry of her plea (and was repeatedly told that she was under no obligation to enter a plea), as well as the consequences of her plea, and defendant stated that she understood. The court found the plea to be free and voluntary, and that there was a factual basis for the plea, and defense counsel agreed that there was a factual basis. Defendant was represented by counsel throughout the proceedings. Defendant complained about her attorney's performance in her declaration supporting her request for a certificate of probable cause; however, the record on appeal reveals no deficiency in counsel's performance. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
There are no meritorious issues to be argued on appeal. The judgment is affirmed.
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Sepulveda, J.
We concur:
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Reardon, Acting P.J.
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Rivera, J.