Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CF1616, John Conley, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Joseph Alexander Blain filed a notice of appeal with this court following the judgment of conviction ordering him to prison for a total of eight years after a guilty plea to seven counts of molesting minors. (See Pen. Code, § § 288, subd. (a), 288, subd. (c).) Because of the guilty plea, Blain petitioned the trial court for a certificate of probable cause, but that request was denied. Thus, this appeal is limited to issues arising after entry of the plea that do not challenge its validity or involve a search or seizure. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 30(b).)
We appointed counsel to represent Blain on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against Blain but advised the court she failed to find any issues to argue on his behalf. We examine the entire record ourselves to see if any arguable issue presents itself.
The charges arose from the following summary as written by Blain in his change of plea form: Between August 2004 and May 2005, Blain “did willfully and unlawfully touch[] the body of a girl under the age of 14 yrs (Jane Doe #1) on three separate and distinct occasions with the specific intent to gratify [his] sexual desires. [¶] . . . [B]etween 12/29/01-12/28/02 [Blain] did willfully and unlawfully touch[] the body of a girl under the age of 14 yrs (Jane Doe #2) on two separate and distinct occasions with the specific intent to gratify [his] sexual desires and the touchings involved substantial sexual conduct to wit: masturbation.” In a separate page, Blain added a further statement: “On or about 12/29/02-12/28/04, [Blain] did willfully and unlawfully touch[] the body of a girl who was 14 or 15 years old (Jane Doe #2) on two separate and distinct occasions with the specific intent to gratify [his] sexual desires and at the time [he] was more than 10 years older than the victim.” In addition, further information was presented to the court via the defense motion to withdraw the guilty plea which clarified the above statements: The two victims were the 12- and 14-year-old daughters of the woman with whom Blain was romantically involved. Upon telling their mother of the incidents they had revealed earlier to investigators, both young girls wrote letters recanting their statements accusing Blain, explaining the molestations must have been merely Blain’s habit of tickling them.
Counsel briefly stated that the following issues were considered or investigated, but that she determined they were not arguable. Nonetheless, we reviewed the issues, summarized as follows:
1. Was trial counsel incompetent by joining in the guilty plea although he had been informed already that Blain was incarcerated during six months of the time alleged in the complaint? Because the facts support the plea in spite of that incarceration period, we conclude counsel was correct in determining the issue was not arguable.
2. Assuming the sufficiency of Blain’s proffered information that he was clinically depressed and unable to obtain necessary medication for that depression, was the denial of the certificate of probable cause erroneous? Based on the holding and rationale of People v. Panizzon (1996) 13 Cal.4th 68, we conclude counsel was correct in assessing that it was properly denied. Moreover, on appeal there is a presumption in favor of the judgment. (See generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal §§ 147-149, pp. 394-396.) Thus, we reject Blain’s factual attacks on the judgment as presented in his motion to withdraw the plea.
Blain was informed he could submit written concerns or argument and was given 30 days to do so. On July 30, 2007, we accepted his belated written statement, and his written explanation for that delay, and vacated submission of this case to consider the issues he raised in his handwritten papers, which we treat as a supplemental brief. Specifically, Blain argued that:
1. Trial counsel failed to investigate his case and coerced the change of plea—in collusion with the prosecutor—by misinforming defendant that he would serve 18 years if he did not accept the plea with the set term of eight years. However, entry of the guilty plea to a set term waives all defects in the proceedings leading up to the plea and imposition of the agreed-upon sentence. (See generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, §§ 8-9, pp. 242-244.) Moreover, reliance on trial counsel’s poor advice, absent official fraud, is not grounds for withdrawal of a guilty plea, much less reversal on appeal. (See 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 295, p. 514.) Counsel’s advice as evidenced by the written change of plea form correctly stated the potential maximum sentence for the charges Blain faced as 18 years, 4 months. This potential maximum sentence was reiterated at the change of plea hearing by the trial court, which offered the term of eight years in exchange for the guilty plea. This offer included striking the prior prison term for sentencing purposes and the prosecutor’s dismissal of an accompanying misdemeanor charge. On the record, Blain declared that he understood the offer and the consequences of his change of plea, which declaration renders his after-the-fact argument of deception and collusion by his counsel unreliable.
2. Blain states, without authority or explanation, that “[t]here should have been a competency hearing by the trial judge before I was sentenced . . . .” As there was no indication by anyone involved in the process that Blain could not understand the proceedings or assist his counsel in his own defense, a competency hearing does not appear relevant. He does not profess to be incompetent, now or in the past.
3. Blain generalizes in a summary that a miscarriage of justice has occurred, but fails to specify how or by whom. He concludes the prosecutor committed misconduct, his counsel ineffectively represented him and the sentencing court imposed terms for counts which allegedly never occurred. However, he fails to say in what way these violations occurred or even to specify the events constituting the violations, including his brief reference to Penal Code section 654, which cannot be attacked as he pleaded guilty to the set term.
We have examined the record and found no other issue that merits argument. (See People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.