Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge. Super. Ct. No. MCR022777
Geoff Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Wiseman, J.
PROCEEDINGS
Appellant Brian Brown was charged in an information filed November 3, 2005, with possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). On December 27, 2005, Brown agreed to a plea bargain in which he would admit the allegation in exchange for the dismissal of two other pending criminal actions. Brown executed a declaration regarding a guilty plea form acknowledging: the police report could serve as a factual basis for his guilty plea, he was waiving his constitutional rights, he faced a maximum period of incarceration of three years, he would receive three years of felony probation, two other pending criminal cases were to be dismissed, and he would be immediately released from custody. In signing the form, Brown acknowledged discussing his rights and the plea agreement with his attorney.
The form set forth appellant’s rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
The court advised Brown, and Brown waived, each of his Boykin/Tahl rights. Brown stated he had enough time to discuss the case with his attorney. Trial counsel stated that he discussed with Brown his rights, defenses and the consequences of his plea. Among the consequences of his plea, the trial court told Brown that if he violated his probation he could go to prison for three years. The court told Brown he would have to register as a drug offender. Brown pled no contest to the allegation.
On February 27, 2006, the court placed Brown on felony probation for three years. The court advised Brown of several conditions of probation, including that: he obtain a high school education or vocational training; obey all reasonable directives of the probation officer; obey all laws; perform 100 hours of community service; seek and maintain gainful employment; submit to a search condition at the discretion of any peace officer; submit to drug and alcohol testing; not possess illegal drugs, alcohol, or drug paraphernalia; not possess any alcohol container; not enter into any alcohol sales or service establishments; not associate with known drug dealers; not frequent areas known for drug trafficking; and, attend a substance abuse and counseling program. The court imposed a restitution fine as well as other fines, fees, and penalties. Brown lodged no objection to any term or condition of probation. Brown did not move to withdraw his plea, complain about his counsel’s representation, nor appeal from the court’s order placing him on probation.
All of these conditions of probation are included in the probation officer’s recommendation for conditions of probation in the probation report.
On September 20, 2006, the probation department filed a petition to revoke Brown’s probation. The petition alleged Brown violated the conditions of probation that he not possess alcohol or alcohol containers, not use alcohol, and that he attend substance abuse counseling. On September 21, 2006, Brown also expressed a desire to withdraw his no contest plea. Brown decided to admit the allegation after being advised of and waiving his rights to a contested hearing. The trial court revoked, then reinstated Brown’s three-year probation from the original sentencing date of February 27, 2006.
On September 29, 2007, the court received a letter sent by Brown stating he had been deceived into entering a plea of no contest because defense counsel and the prosecutor promised him that the only probation conditions would be drug testing and a search condition. Brown asserted that he would not have entered into the plea agreement had he known of the other conditions of probation. The letter was sent nine months after Brown entered his no contest plea and seven months after he was sentenced to probation.
On February 23, 2007, the probation department filed a second petition to revoke Brown’s probation. This petition alleged that Brown violated conditions not to possess or use alcohol, not to possess alcoholic containers, and failed to attend substance abuse counseling. On February 26, 2007, Brown denied the allegations in the petition. After a contested hearing on March 16, 2007, the court found the allegations in the petition to be true.
On April 16, 2007, Brown waived time for sentencing and informed the court that he intended to make a motion to withdraw his plea. On June 6, 2007, defense counsel filed a motion to withdraw Brown’s no contest plea pursuant to Penal Code section 1018. In his declaration, Brown stated that he was not aware of additional conditions of probation when he entered into the plea agreement and that neither the prosecutor nor his attorney withheld terms and conditions of probation with intent to deceive. Brown stated he would not have entered into the agreement had he known all of the terms and conditions of probation. Brown expressed his belief that the prosecutor was eager for him to enter into the agreement because there was no case against him. Brown denied knowing all of the terms and conditions of his probation and denied that his trial counsel informed him of these prior to entering his change of plea.
All further statutory references are to the Penal Code.
On July 2, 2007, the trial court denied Brown’s motion to withdraw his plea. The court explained to Brown that his motion to withdraw his plea was barred by section 1018 because he waited more than six months after his plea to make any motion to withdraw. On July 24, 2007, the court revoked Brown’s probation and sentenced him to prison for the midterm of two years. The court reimposed a restitution fine of $200 and ordered other fines, penalties, and assessments.
Brown’s 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 Brown was advised he could file his own brief with this court. By letter on November 26, 2007, we invited Brown to submit additional briefing.
Brown replied with three letters. In the first letter, Brown asserts that his case was simple because he was subjected to an illegal search and seizure and the arresting officer filed a false police report. Brown states he entered into a plea agreement without knowing the terms and conditions of probation. Brown claims his trial counsel failed to tell him what terms and conditions would apply to him.
In the second letter, Brown states that he wants new appellate counsel to represent him in a petition for a writ of habeas corpus. Brown claims his trial counsel was ineffective and did not properly represent him in the section 1018 hearing.
In a third letter entitled “Supplemental Brief,” Brown states the arresting officer filed a false police report and that he is the victim of a cover-up and a conspiracy by the attorneys and the trial court. Brown complains about a warrantless search, the absence of a suppression motion by trial counsel, and the failure of the trial court to grant his motion pursuant to section 1018 to withdraw his plea.
On August 31, 2007, the trial court granted Brown’s request for a certificate of probable cause.
FACTS
At the revocation hearing, Nicandro Rojas, a probation officer, testified that on November 1, 2006, he visited Brown’s residence and found Brown intoxicated on alcohol and in possession of empty and full cans of beer. On January 9, 2007, Rojas conducted another probation search of Brown’s home and found more full and empty cans of beer. Brown was again under the influence of alcohol. On January 19, 2007, Rojas conducted another probation search of Brown’s home and found Brown intoxicated and in possession of full and empty cans of beer.
On February 22, 2007, Rojas searched Brown’s residence and found Brown intoxicated and again in possession of full and empty cans of beer. Rojas testified that Brown failed to complete substance abuse counseling. The court took judicial notice that Brown was placed on probation on February 27, 2006 and his conditions of probation included that he not possess or use alcohol, not possess empty or full containers of alcohol, and attend substance abuse counseling.
DISCUSSION
Notwithstanding Brown’s certificate of probable cause, we find his appeal untimely as to the primary issue raised in his letters -- that the trial court erred in failing to grant his motion to withdraw his plea. Brown was originally sentenced to probation on February 27, 2006. The trial court’s order placing Brown on probation was an appealable order and that was the time for him to challenge any earlier rulings such as the court’s ruling on his suppression motion. (See People v. Howard (1997) 16 Cal.4th 1081, 1087; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; In re DeLong (2001) 93 Cal.App.4th 562, 571.) Brown did not request to withdraw his plea until he sent a letter received by the trial court on September 29, 2006, six months after the court placed him on probation. The time to appeal the court’s order placing him on probation had long since passed.
On September 21, 2006, Brown orally expressed a desire to withdraw his plea and then abandoned it after he waived his right to a hearing and the trial court revoked and then reinstated his probation. The letter Brown sent is dated September 22, 2006.
Brown’s third letter to this court attacks the constitutionality of the original search and asserts that there was a conspiracy against him. The validity of the search could have been appealed had Brown made a suppression motion to the trial court and appealed from the court’s order placing him on probation in a timely matter. Brown failed to accomplish either task, leaving us nothing to review, concerning the search and seizure or the conduct of the officers who arrested him, on direct appeal.
Brown, however, did not actively pursue his request to withdraw his plea until much later. On March 16, 2007, the court found Brown in violation of the terms of his probation a second time. On April 16, 2007, Brown waived time for sentencing and informed the court that he intended to make a motion to withdraw his plea. The trial court did not hear Brown’s motion to withdraw his plea until July 2, 2007. The court denied the motion. Section 1018 expressly limits the time for bringing a motion to withdraw a plea “at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended ….” A trial court lacks jurisdiction to grant a motion to withdraw a plea six months after it has placed a defendant on probation. (People v. Miranda (2004) 123 Cal.App.4th 1124, 1133-1134.)
Brown’s motion to withdraw his plea was not filed until June 6, 2007, more than 15 months after he was placed on probation. Even if Brown’s letter received by the trial court on September 29, 2006, could be construed as a formal motion to withdraw his plea, it was not filed until seven months after he was placed on probation. The trial court lacked jurisdiction to grant Brown’s motion to withdraw his plea after August 27, 2007, and did not err in denying his motion on July 2, 2007.
Furthermore, the merits of Brown’s claim are very weak. During the February 27, 2006, sentencing hearing, the trial court expressly informed Brown on the record of the limitations on drug and alcohol use and possession. These proposed terms of probation were included in the probation officer’s report. Brown failed to object to any term of probation until after he was found in violation of probation. He certainly failed to object to any term of probation during the February 27, 2006, sentencing hearing.
Brown’s other contentions in his letter brief are related to his motion to withdraw his plea. Brown asserts that trial counsel was ineffective in representing him on the motion to withdraw his plea, but Brown mentioned nothing of such a motion until well over six months after he was placed on probation.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.
Brown also asserts that his trial counsel was ineffective for failing to inform him of the consequences of his plea regarding conditions of probation, but any evidence of what Brown’s trial counsel told him, or failed to tell him, lies outside the record on appeal. Argument that relies on matters outside the record may not be considered on appeal. (See People v. Smith (2007) 40 Cal.4th 483, 507; People v. Allen (1999) 21 Cal.4th 424, 439.) Without a record of how trial counsel advised Brown, we cannot review the matter on direct appeal.
Brown has further requested in his correspondence that we appoint counsel to pursue a petition for writ of habeas corpus. We will not expand the appointment of current appellate counsel to do so. Should Brown so choose, he may still file a petition for habeas corpus. Such a petition should be filed in superior court first, not with this court. (In re Hillery (1962) 202 Cal.App.2d 293, 294.)