Opinion
E082747
03-27-2024
THE PEOPLE, Plaintiff and Respondent, v. NELS KENDALL ARNETT, Defendant and Appellant.
Lara Gressley, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI23000786 John P. Vander Feer, Judge. Affirmed.
Lara Gressley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Pursuant to a negotiated disposition, defendant and appellant Nels Kendall Arnett pled no contest to one count of committing criminal threats (Pen. Code, § 422) against his mother. In exchange, the remaining charge was dismissed, and he was sentenced to the low term of 16 months in prison, given credit for time served, and released on parole. Defendant appeals from an order after judgment. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has done so. Based on our independent review of the record, we find no error and affirm the judgment.
Unless otherwise stated, all future statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from the police report.
On March 7, 2023, defendant threatened to harm and kill his then 75-year-old mother. He also threatened to kill and assault his younger half-brother. Defendant lived at his mother's residence, despite having a restraining order to stay away from his mother, and was a constant nuisance to her and his half-brother. Defendant's mother claimed that she was afraid of defendant and in fear for her life.
Following a preliminary hearing, on June 22, 2023, an information was filed charging defendant with one count of criminal threats (§ 422; count 1) and one count of misdemeanor contempt of court (§ 166, subd. (c)(1); count 2) when he willfully and knowingly violated a protective order.
At the preliminary hearing, defendant's mother recanted her statements to the investigating deputy and claimed she did not want defendant prosecuted.
On July 13, 2023, defendant pled no contest to committing criminal threats. In return, defendant was promised a stipulated low term of 16 months in prison, dismissal of the remaining charge and release on parole based on time served. Prior to pleading guilty, defendant executed a felony plea form in which he acknowledged he would be released on parole at the time of his sentencing. The trial court went over the plea of no contest with defendant at the hearing, and defendant and his counsel acknowledged that defendant had enough time to review his constitutional rights, possible defenses and the plea form with his attorney. Defendant stated that he had no questions for the court and that he was entering into the plea agreement on his own free will. Defendant's counsel and the prosecutor joined with defendant in the plea agreement and stipulated the preliminary hearing transcript and police report for the factual basis for the plea. After directly examining defendant, the court found that defendant understood his plea form, the nature of the charges, the consequences of pleading no contest, and his constitutional rights. The court also found that defendant's plea and waiver were knowingly, intelligently, and voluntarily given and that there was a factual basis for the plea. The court dismissed the remaining charge, set the sentencing hearing and ordered a no-contact and stay-away order protecting defendant's mother and half-brother.
On November 1, 2023, defendant was sentenced in accordance with his plea agreement to the low term of 16 months in prison, awarded 480 days credit for time served, and released on parole. The court ordered defendant to report to the parole office by November 3, 2023, and also ordered defendant to pay a $300 restitution fine, a stayed $300 parole revocation fine, a $70 court operation assessment.
Defendant subsequently sought to withdraw his plea. However, on November 17, 2023, he requested "to remove this request for Motion to Withdraw Plea from calendar."
On December 7, 2023, defendant timely filed a notice of appeal and request for a certificate of probable cause. In his request, defendant stated that the accusations made by his mother that he had threatened to kill her were false and based on speculation. He also claimed that he only signed the plea deal because he had too many beers that day and was not sure what he was being accused of, and whether it was true or not. He also indicated that his attorney had promised him he would not have to do classes if he entered the plea agreement, but that his parole officer later told him, "'She lied. You've got 52 classes to do.'" The trial court granted defendant's request for a certificate of probable cause on December 13, 2023.
III.
DISCUSSION
After defendant appealed, this court-appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues of whether defendant received ineffective assistance of counsel based on defendant's claim that his counsel advised him that he did not have to attend domestic violence classes and whether defendant entered into his plea knowingly, intelligently and voluntarily due to his misunderstanding that he would not have to take domestic violence classes if he was on parole, as opposed to probation.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental letter brief, defendant contends that his trial counsel had advised him that he would not have to take domestic violence classes upon his release on parole and that he had only accepted the plea to be placed on parole, rather than probation, because he understood that he would not have to take domestic violence classes upon release on parole. He reiterates appellate counsel's potential issues of ineffective assistance of counsel and whether his plea was given knowingly, intelligently and voluntarily.
Defendant is entitled to effective assistance of counsel in determining whether to accept or reject a plea bargain. (See In re Alvernaz (1992) 2 Cal.4th 924, 933; In re Vargas (2000) 83 Cal.App.4th 1125, 1133.) Defendant, however, was not denied effective assistance of counsel. There is no evidence in the record to suggest trial counsel informed defendant he would not have to partake in domestic violence classes upon release on parole.
Moreover, the terms and conditions of parole are not a permissible subject of plea negotiations. (Berman v. Cate (2010) 187 Cal.App.4th 885, 894, citing In re Moser (1993) 6 Cal.4th 342, 357.) The Board of Parole Hearings (the board) "has sole authority, within the confines set by the Legislature, to set the length of parole and the conditions thereof. (§§ 3000, subd. (b)(6), 3041.)." (Berman v. Cate, supra, at p. 898, italics added.) "While the commitment offense is one factor the board may consider in determining the length of parole, it must likewise consider a myriad of statutory factors including those that relate to postjudgment conduct, parole plans, and rehabilitation. [Citations.] Thus, permitting the prosecution or court to negotiate the conditions and/or length of parole would usurp the board's statutory authority and negate any consideration of factors relating to a defendant's postjudgment conduct." (Id. at pp. 898-899.) Thus, an alleged incorrect advisement concerning defendant's requirement to participate in domestic violence classes on parole was not a misrepresentation as neither the prosecutor nor defense counsel had the ability to negotiate conditions of parole. Further, there is no evidence that defendant received incorrect advice that caused him to accept the plea deal. (See In re Alvernaz, supra, 2 Cal.4th 924 at p. 934 [in order to successfully challenge a guilty plea on the ground of ineffective assistance of counsel, "a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial"]; cf. People v. Carter (2003) 30 Cal.4th 1166, 1211 ["[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation"].)
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV.
DISPOSITION
The judgment is affirmed.
We concur RAMIREZ P. J., McKINSTER J.