Opinion
C096751
06-07-2023
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JAMES BROWNE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. 2020CR0023122, CH038061)
HULL, Acting P. J.
Appointed counsel for defendant Edward James Browne asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal, pursuant to People v. Wende (1979) 25 Cal.3d 436. We requested supplemental briefing from the parties regarding defendant's allegations about his counsel's performance investigating his case and advising him to plead guilty. Having considered the parties' supplemental briefs and conducted an independent review of the record, and finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment without prejudice to defendant raising his claim of ineffective assistance of counsel by way of a petition for a writ of habeas corpus.
FACTS AND HISTORY OF THE PROCEEDINGS
I
Defendant's Guilty Plea
In June 2020, the prosecution charged defendant with possession of a weapon while confined in a penal institution (Pen. Code, § 4502; statutory section citations that follow are found in the Penal Code unless otherwise stated) and alleged that defendant had previously been convicted of a serious or violent felony (§§ 667, subd. (d), 1170.12, subd. (b), 667.5, subd. (c), 1192.7, subd. (c)). In February 2022, after defendant's appointed counsel explained that he still had not spoken with defendant, the trial court set a preliminary hearing for May 2022. On the hearing date, another attorney, William Abramson, made a special appearance to explain that defendant's appointed counsel could not appear. Defendant stated that he had never spoken to his appointed counsel. The trial court relieved the first appointed counsel and appointed Abramson as defendant's counsel.
At the next hearing in July 2022, defendant pleaded guilty to possession of a weapon while confined in a penal institution and admitted the prior conviction for a serious or violent felony. The trial court sentenced defendant to a stipulated lower term sentence of two years in prison (§ 4502, subd. (a)), doubled to four years due to the prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). The trial court also resentenced defendant for a prior conviction for possession of a weapon while confined in a penal institution, reducing the two-year lower term sentence to a consecutive one-year term in prison, pursuant to section 1170.1, subdivision (a). (See § 4502, subd. (a) [consecutive sentence mandatory].)
II
Defendant's Allegations of Ineffective Assistance of Counsel
In early August 2022, defendant filed a handwritten "Motion to Appeal Plea Bargain Due to Ineffective Assistance of Counsel." In support of this motion, defendant submitted a declaration describing the events that led up to his guilty plea. Even though the complaint alleged only one prior strike conviction, Abramson advised defendant that the prosecutor would also use a prior juvenile adjudication as a second strike, thereby exposing defendant to a potential three strikes sentence of 25 years to life in prison. Defendant informed Abramson he was only 14 years old at the time of the juvenile adjudication, but Abramson insisted that another client had recently been sentenced to 25 years to life in prison based in part on a juvenile adjudication for an offense committed at age 14.
Defendant then told Abramson that the prison where the instant offense occurred had video footage of the incident that would exonerate him. Abramson told defendant the video would no longer exist because the incident happened two years ago and the prison records over videos after 45 days.
Based on this advice, defendant decided not to fight the case and to accept the plea deal. But, when defendant returned to prison after sentencing, the prison official handling defendant's administrative discipline proceeding asked him if he would like to see the video of the incident and told him Abramson was wrong-the prison does not record over videos until the court process is over.
III
Appeal
The trial court treated defendant's "Motion to Appeal Plea Bargain Due to Ineffective Assistance of Counsel" as a notice of appeal. Defendant's appellate counsel then filed an amended notice of appeal requesting a certificate of probable cause based on the allegations in defendant's declaration. The trial court granted the request. We granted defendant's request to deem the certificate of probable cause timely granted.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history 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.) We requested supplemental briefing from the parties regarding defendant's allegations about his counsel's deficient performance. We agree with the parties that we lack a sufficient record to determine on appeal whether defendant's counsel performed ineffectively. Defendant did not raise the issue until after he had been convicted and sentenced, so we have only defendant's declaration and lack, for instance, testimony from his attorney, any testimony that would be elicited by cross-examination, and evidence sufficient to determine whether any misadvisement prejudiced defendant (see In re Resendiz (2001) 25 Cal.4th 230, 253-254).
Defendant's delay in raising the issue, while understandable in the circumstances, also distinguishes this case from cases where appellate courts remanded for an evidentiary hearing on an issue that had been brought to the trial court's attention but left unresolved. (See, e.g., People v. Minor (1980) 104 Cal.App.3d 194, 199-200; see generally Appeals and Writs in Criminal Cases (Cont.Ed.Bar 3d ed. 2022) § 5.31.) After considering the parties' supplemental briefs, we conclude we lack any procedural mechanism on direct appeal to require further factfinding in the trial court.
Nor can we conclude the trial court erred by not holding a hearing after receiving defendant's allegations. As an initial matter, we agree with defendant that his allegations would have warranted a Marsden hearing to determine whether to appoint substitute counsel (see People v. Marsden (1970) 2 Cal.3d 118, 123-124), who could then move to withdraw defendant's guilty plea (see People v. Sanchez (2011) 53 Cal.4th 80, 89-90), had defendant presented his allegations prior to entry of judgment. Defendant's trial counsel's alleged failure to try to obtain a potentially exculpatory video appears unreasonable. (See, e.g., In re Edward S. (2009) 173 Cal.App.4th 387, 407 ["a defense attorney who fails to investigate potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation"].) And trial counsel's alleged advice that a prior juvenile adjudication can constitute a prior serious or violent felony if the juvenile was 14 years old when he committed the offense is incorrect. (See §§ 667, subd. (d)(3), 1170.12, subd. (b)(3).)
But, as the People note, once judgment has been entered, a trial court lacks jurisdiction to grant a motion to withdraw a guilty plea. (§ 1018; People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1324.) Accordingly, after the entry of judgment, defendant could not have "shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel." (People v. Smith (1993) 6 Cal.4th 684, 696.) By the time defendant filed his motion, which the trial court treated as a notice of appeal, trial counsel could not have provided any additional effective assistance. Rather, after the entry of judgment, defendant was limited to petitioning for a writ of habeas corpus to assert that evidence outside the record justifies reversing the judgment and permitting him to withdraw his guilty plea. (See, e.g., People v. Johnson (1995) 36 Cal.App.4th 1351, 1356-1358.)
Having undertaken an examination of the entire record pursuant to Wende, we found nothing else in the record that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: RENNER, J. KRAUSE, J.