Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GA058134, Carlos A. Uranga, Judge. Affirmed.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Eric Gilbert Butler (Butler) appeals from the judgment (order revoking probation) entered following his plea of no contest to making a criminal threat (Pen. Code, § 422). The trial court sentenced Butler to 16 months in state prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the probation report.
At approximately 6:00 p.m. on July 16, 2004, Butler approached the victim who was sitting in her car in the “drive thru” at a McDonald’s restaurant in Monterey Park. In a “rude manner,” Butler demanded that the victim give him her spare change. When she refused, Butler said, “ ‘Look in your ashtray, bitch[,]’ ” then placed his head in the car through the open driver’s side window and stated, “ ‘I should shoot you[.] I have a gun in my backpack.’ ” Butler then placed his head inside the open rear window and told the victim’s five-year-old grandson, “ ‘I’ll shoot you.’ ” The victim was able to maneuver her car out of the “drive thru” lane and watched as Butler walked away, out of her sight. The police were contacted. Officers searched the area, located Butler and placed him under arrest.
2. Procedural History.
On July 19, 2004, Butler was charged by felony complaint with one count of making a criminal threat (§ 422). Butler waived arraignment, a reading of the complaint and a statement of his constitutional and statutory rights and entered a plea of not guilty to the charge.
At proceedings held on August 24, 2004, defense counsel declared he had a doubt as to Butler’s mental competence and requested that he be examined. On September 2, 2004, after determining that Butler had been found to be competent, the trial court reinstated criminal proceedings.
On January 11, 2005, defense counsel indicated Butler was prepared to enter a change of plea. Counsel stated, “[I]t will be a no contest to the charge. The agreed-upon disposition is formal probation for three years, as well as [270] . . . days in the county jail. [¶] And by my calculations, Mr. Butler has 180 actual days” and 90 days of good time/work time. Butler indicated he understood the charge was for a serious, or “strike,” felony and that, should he violate probation, he could be sentenced to state prison for up to three years.
After waiving his right to a preliminary hearing, his right to a court or jury trial, his right to subpoena witnesses and present a defense, his right to confront and cross-examine the witnesses against him and his privilege against self-incrimination, Butler pleaded no contest to one count of making a criminal threat in violation of section 422. Counsel for Butler joined in the waivers and concurred in the plea pursuant to People v. West (1970) 3 Cal.3d 595.
The minute order, dated January 11, 2005, indicates “[c]ounsel for defendant joins in the waivers but does not concur in the plea, pursuant to People v. West.” (Italics added.)
At the same January 11th proceedings, the trial court suspended imposition of sentence and placed Butler on formal probation for three years. Butler was given credit for 270 days served in county jail and directed to report to the probation department within 48 hours of his release from custody.
On February 17, 2005, the trial court indicated it appeared Butler had “deserted probation.” Accordingly, probation was revoked and a “ ‘no bail’ ” bench warrant was issued for Butler’s arrest.
A probation revocation hearing was held on June 1, 2005. Butler was released from custody, ordered to report to the probation department within 48 hours and directed to return to court on June 8, 2005 “with proof of having reported to [the] probation department.”
On June 8, 2005, Butler appeared before the trial court and presented evidence to show that he had reported to the probation department. The trial court ordered Butler to return to court on July 20, 2005.
Butler failed to appear when the matter was again called for a probation revocation hearing on July 20, 2005. The trial court ordered probation to remain revoked and that a “ ‘no bail’ ” bench warrant issue for Butler’s arrest.
Butler appeared at proceedings held on August 28, 2006. Bail was set at $100,000.
At proceedings held on October 27, 2006, the Public Defender Department declared a conflict of interest and the Alternate Public Defender Department was appointed as counsel for Butler. The trial court agreed to continue proceedings.
On December 18, 2006, counsel for Butler filed in the trial court a motion to withdraw Butler’s no contest plea. Counsel argued the plea should not have been accepted in view of Butler’s repeated assertions that he was innocent of the crime charged. In addition, counsel urged the plea had been entered by virtue of “mistake, ignorance, inadvertence or . . . other factor overreaching [Butler’s] free and clear judgment.” Finally, counsel argued Butler had entered the plea after having received ineffective assistance of counsel.
In support of the motion, Butler filed a declaration in which he stated that at the time he entered his plea he was represented by Dennis Yamamoto (Yamamoto) of the Public Defender Department. Butler indicated he was “factually innocent” of the charge in this case but had entered a plea in part because Yamamoto had told him that he did not have the right to a jury trial. Butler asserted Yamamoto had also told him that, should he go to trial, “it would not do [him] any good because this was a predominantly Asian and [W]hite community [and Butler is] African-American.”
Butler indicated he had informed Yamamoto that he suffered from medical problems as the result of having been the victim of a violent crime. Butler had epileptic seizures and was required to take a drug called Dilantin. Further, “[a]t some point [Butler] was seen by a doctor who told [him] that [he] was hearing voices and needed a medication called Seroquel.” While in jail, Butler was taking both Seroquel and Dilantin. Butler indicated that, “[p]rior to being put on both the Dilantin and Seroquel, it had always been [his] intent to take this case to trial. The Seroquel changed [his] outlook, making [him] feel melancholy, causing [him] to doubt [him]self, and eventually [he] thought maybe [he] had actually done what [he] had been accused of. This . . . was part of the reason [he] entered [a] plea of nolo contendere. It was only later that [he] realized the doctor was wrong, [he] did not need Seroquel, and [he] should not have doubted [him]self or pled no contest to a crime [he] did not commit. [He] would not have entered a plea of no contest but for the negative effects of the Seroquel on [him]. [He] believe[d] the Seroquel interfered with [his] ability and capacity to understand what was going on and to make [a] knowing, voluntary and intelligent choice.”
Finally, Butler stated he had told Yamamoto that he “could not do formal probation because [he] worked in the entertainment industry, and already had plans to make [his] debut in Europe. [He] had further told [Yamamoto] that [he] was going to take [his] wife and kids home to Africa. [Butler] explained that [he] could only plead guilty to a misdemeanor and not a felony charge, as a felony would interfere with [his] dual citizenship, passport, and visa status. Despite this, Mr. Yamamoto told [Butler that he] had no choice but to plead to a felony charge.”
A hearing was held on the motion on February 26, 2007. Butler’s testimony was consistent with the statements he had made in his declaration. In particular, Butler testified that he was innocent of the charge of making a criminal threat and that he had communicated this to his counsel, Dennis Yamamoto. In addition, Butler testified he had not understood that he was pleading guilty to a felony; he believed he was pleading to “formal probation [and] time in jail.” Butler stated he wished to have his plea set aside and to have a jury trial.
Yamamoto testified that he had been an attorney with the Public Defender Department for approximately 10 years. He had represented Butler when Butler entered his no contest plea to making a criminal threat. During discussions with Butler before he entered the plea, Yamamoto explained to Butler the elements of the offense, the possible penalties and the fact that the crime was a felony. At no time did Yamamoto tell Butler that he did not have the right to a jury trial. Yamamoto told Butler that whether he should go to trial was his “decision . . . to make.” Yamamoto advised Butler of “his other rights” and Butler appeared to understand them. Yamamoto did not recall Butler telling him that he was ill and Butler had not appeared to be under the influence of any drug or medication which might have affected his ability to understand Yamamoto or the proceedings. Yamamoto did not recall having any discussions with Butler regarding his plans to leave the state or the country.
On cross-examination, Yamamoto indicated that, during the time he represented Butler, Butler had “always maintain[ed] factual innocence.” Yamamoto indicated that he had requested that Butler be examined by a doctor in order to be certain that Butler was competent to enter a plea. According to Yamamoto, Butler had been “not the most cooperative of clients.” Yamamoto noticed a marked change after Butler was examined. He was “much more cooperative.” Yamamoto indicated that, after “going over the terms and conditions of probation and the waiver of rights,” he and Butler had a discussion regarding “some particular things that he[, Butler,] would have to do[.] . . . [B]ased on [Butler’s] questions . . . [Yamamoto] thought that. . . [Butler] did have an understanding as to what was required.” Butler did not tell Yamamoto about his profession or his plans to leave the state. When Butler expressed his desire to take advantage of the prosecution’s offer of a plea bargain, Yamamoto was satisfied that Butler was competent to enter the plea and that he understood he was pleading no contest to a felony. Yamamoto could not recollect, and his notes did not show, anything to indicate that Butler had not wanted to enter the plea.
After reviewing the court file, including the transcript of the plea proceedings and the doctor’s report, the trial court determined there had been no evidence, other than Butler’s testimony, that the medication Butler had been taking affected his “free will or understanding” of the proceedings. In addition, the doctor’s report indicated Butler understood the nature of a jury trial and the charges pending against him. Butler also told the examining doctor that, at that time, “he was willing to enter into the negotiated plea.” Based on this evidence, the court concluded Butler “clearly had an understanding at that time of what was going on [and] [i]t [did] not appear to [the] court that [Butler] was coerced into entering into the plea.” Moreover, although Butler testified he had not understood he was pleading to a felony, the transcript of the plea proceedings indicated “[t]he court not only explained to him it was a felony, but that it was a strike . . . .” When the trial court had then asked Butler if he understood, Butler had replied, “ ‘Yes.’ ” For these reasons, the trial court denied Butler’s motion to withdraw his plea.
A probation revocation hearing was held on February 28, 2007. Frank Corales (Corales), a deputy probation officer for the Los Angeles County Probation Department, testified he had prepared a report regarding Butler’s performance on probation. The report indicated Butler had several probation violations. Initially, he had left California without notifying the court or the Probation Department. While outside of California, Butler had been arrested on four different occasions. When Corales interviewed Butler, he initially denied having been arrested. However, Butler later stated that one arrest involved an incident during which he had been accused of stealing sunglasses from a store and had been found to be in possession of marijuana.
In addition to the arrests, Butler had failed to report to the probation officer on numerous occasions. Corales characterized Butler’s overall performance on probation as “poor” and recommended that probation be revoked and Butler sentenced to state prison.
Butler testified he informed his probation officer that his wife and children lived in Washington, D.C., and that he was going there to be with them. From there, Butler planned to travel with his family to Africa. At no time was Butler informed that it was a violation of his probation to leave California without first getting permission. Neither had Butler’s probation officer explained to Butler that his probation supervision could be “transferred to another state.”
The trial court found Butler to be in violation of the terms of his probation and sentenced him to 16 months in state prison. Butler was given presentence custody credit for 556 days, comprised of 371 days actually served and 185 days of good time/work time. The trial court ordered Butler to pay a $200 restitution fine (§ 1202.4, subd. (b)) and ordered, then suspended, a $200 parole revocation restitution fine (§ 1202.45).
Butler filed a timely notice of appeal on March 12, 2007.
This court appointed counsel to represent Butler on appeal on June 29, 2007.
CONTENTIONS
Appointed appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice dated October 22, 2007, the clerk of this court advised Butler to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Butler’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment (order revoking probation) is affirmed.
We concur: CROSKEY, J., KITCHING, J.