Opinion
F061823
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. DAMON COOK, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 10CM7243)
OPINION
THE COURT
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County. James T. LaPorte, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
On October 28, 2010, pursuant to a plea agreement, appellant, Damon Cook, pled no contest to two counts of the offense commonly known as gassing (Pen. Code, § 4501.1, subd. (a) ; counts 1, 2) and admitted a "strike" allegation. That same date, appellant waived his rights to a preliminary hearing and the preparation of a presentence report, and the court imposed a prison term of 10 years, consisting of the four-year upper term on count 1 plus one year—representing one-third of the middle term—on count 2, for a total of five years, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and ordered that term to be served consecutively to the prison term appellant was serving at the time of the instant offenses. The court determined that appellant was entitled to no presentence credit.
All statutory references are to the Penal Code.
We use the terms "strike" and "strike conviction" as synonyms for "prior felony conviction" within the meaning of the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Appellant filed a timely notice of appeal and requested that the court issue a certificate of probable cause (§ 1237.5). The court denied that request.
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant, apparently in response to this court's invitation to submit supplemental briefing, has submitted multiple briefs in which he makes various claims of trial court error and ineffective assistance of both trial and appellate counsel. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
Because appellant waived his rights to a preliminary hearing and the preparation of a presentence report, our factual summary is taken from the transcript of the proceeding at which appellant entered his pleas and admission: On December 18, 2009, appellant committed two counts of "battery by gassing upon [two] peace officer[s] while confined in state prison...." Appellant's strike was a conviction of burglary (§ 459) on September 17, 1993, in Riverside County.
Procedural Background
The following was alleged in a two-count criminal complaint filed June 15, 2010: appellant committed the instant offenses, he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)); and he had suffered three strike convictions, for burglary in 1993 and, in 1997, for forcible rape (§ 261, subd. (a)(2)) and oral copulation on a person under age 14 and more than 10 years younger than himself (§ 288a, subd. (c)).
At the outset of the pretrial conference on October 28, 2010, defense counsel informed the court that the parties had agreed that appellant would plead no contest to the two charged offenses; he would admit one strike allegation, viz., the 1993 burglary conviction; he would receive the upper term on count 1 and a consecutive one-year term on count 2; and the five-year term would be doubled based on his strike admission.
Later in the hearing, appellant, in response to a question from the court, confirmed that he understood that the agreement covered both the plea and the sentence, and that he "understood the plea agreement of Count 1 and Count 2 plus the single strike prior and the sentencing agreement, which is the ten years." Moments later appellant entered his pleas and admitted the 1993 strike allegation; the court found the plea to be "knowingly, intelligently, freely and voluntarily made with the understanding of the nature of the consequences thereof"; appellant agreed to immediate sentencing without the preparation of a presentence report (§ 1203, subd. (c)); and the court imposed sentence in accordance with the agreement.
DISCUSSION
Claims of Trial Court Error
Appellant argues the trial court erred in failing to establish a sufficient factual basis for appellant's admission of the strike allegation. This contention is not cognizable on appeal.
As indicated above, the court denied appellant's request for a certificate of probable cause. "Penal Code section 1237.5 provides that a defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere' unless the defendant has applied to the trial court for, and the trial court has executed and filed, 'a certificate of probable cause for such appeal.' [Citation.] 'Despite this broad language, [our Supreme Court has] held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' [Citation.]" (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).)And "It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).)Admissions of special allegations, such as enhancement and strike allegations, are treated like pleas of guilty or no contest for certificate-of-probable-cause purposes. (Cf. People v. Fulton (2009) 179 Cal.App.4th 1230, 1237 [absence of certificate of probable cause precluded appellate challenge to admission of prior prison term enhancement allegation]; People v. Williams (1980) 103 Cal.App.3d 507, 511-512 [absence of certificate of probable cause precluded appellate challenge to admission of prior prison term enhancement allegation]; People v. Lobaugh (1987) 188 Cal.App.3d 780, 785 ["Admissions of enhancements are subject to the same principles as guilty pleas."].)
Appellant's claim that the court failed to establish a factual basis for appellant's admission of the strike allegation is a challenge to the validity of that admission. Therefore, under the principles summarized above, the absence of a certificate of probable cause precludes appellate review of this claim.
Appellant also argues the trial court erred in failing to advise appellant prior to the entry of appellant's admission of the strike allegation that, with respect to that allegation, appellant had the right to a jury trial, the right to confront witnesses and the right not to incriminate himself, and that as a result, appellant's admission was neither "voluntary" nor "intelligent." These contentions, too, challenge the validity of the plea and therefore are also not properly before us.
Appellant also contends the court erred in failing to state reasons for the imposition of the upper term on the count 1 offense. This claim may appear at first glance to be a claim of postplea error affecting the sentence. However, in Panizzon, the Supreme Court held that where a defendant is sentenced in accordance with the terms of a plea bargain that provides for a particular sentence, and then attempts to challenge that sentence on appeal, he must secure a certificate of probable cause. The court explained that since the defendant is "in fact challenging the very sentence to which he agreed as part of the plea," the challenge "attacks an integral part of the plea [and] is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and [former] rule 31(d)." (Panizzon, supra, 13 Cal.4th at p. 73.)
Here, the terms of the plea agreement included the imposition of a 10-year prison term. Therefore, under Panizzon, appellant's challenge to the sentence on the ground the court failed to state reasons for the imposition of the upper term is, in substance, a challenge to the validity of the plea, and, for that reason, may not be raised in the absence of a certificate of probable cause.
Finally, appellant argues he was in custody from December 18, 2009, through the date of sentencing in the instance case, October 28, 2010; he is entitled to presentence custody credit for that period; and therefore, the court erred in failing to award such credit.
Although the record contains no presentence report, there can be no serious dispute that appellant, as he asserts, was in custody in state prison on December 18, 2009, serving a sentence for conduct unrelated to the instant offenses, and that he remained in prison custody, serving that sentence, through October 28, 2010, the date of sentencing in the instant case. However, appellant's contention that he is entitled to presentence credit in the instant case for that period is without merit.
This contention is cognizable on appeal despite the absence of a certificate of probable cause because it is a claim of postplea sentencing error. (Shelton, supra, 37 Cal.4th at p. 766.)
Pursuant to section 2900.5, a person sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) However, in People v. Bruner (1995) 9 Cal.4th 1178 (Bruner), our Supreme Court stated that as "a general rule ... a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." (Id. at p. 1191.) This rule of "'strict causation' ... stems from the conclusion that section 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody." (Bruner, supra, at p. 1192.) Thus, the court held, "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." (Id. at pp. 1193-1194.) The defendant in Bruner was not entitled to presentence credit, the court stated, "[b]ecause defendant has not shown that he could have been free ... but for the same conduct that led to the instant conviction and sentence ...." (Id. at p. 1195.)
Appellant has not established he would have been free from custody but for the conduct that led to the instant convictions because although the record establishes that appellant was in custody from the date of the instant offenses through the date of sentencing, the record also establishes he was serving a previously imposed prison sentence during that period. Therefore, under Bruner, he has not met his burden of establishing he is entitled to presentence credit against the sentence imposed in the instant case.
Claims of Ineffective Assistance of Trial Counsel
Appellant contends his trial counsel provided constitutionally deficient representation because counsel: (1) failed to present a pretrial motion to strike appellant's strike conviction based on "Boykin/Tahl grounds" and People v. Sumstine (1984) 36 Cal.3d 909 ; (2) advised appellant to admit the strike allegation; (3) stipulated to the imposition of the upper term of four years on the count 1 offense; and (4) failed to argue at sentencing for the imposition of the lower term.
Before the trial court may accept a defendant's plea to a felony or misdemeanor, the court must give what are commonly called the Boykin/Tahl admonitions, i.e., the court must apprise the defendant of his privilege against self-incrimination, right to jury trial, and right to confront witnesses. (See Boykin v. Alabama (1969) 395 U.S. 238 (Boykin)and In re Tahl (1969) 1 Cal.3d 122 (Tahl).) A defendant may challenge a prior conviction on Boykin/Tahl grounds in a motion to strike. (People v. Sumstine, supra, 36 Cal.3d at p. 919.)
Each of the first three arguments is a challenge to the validity of appellant's plea or admission of the strike allegation based on ineffective assistance of counsel occurring prior to the plea, and therefore may not be reviewed on appeal because the court did not issue a certificate of probable cause. (People v. Stubbs (1998) 61 Cal.App.4th 243 [claim of ineffective assistance of counsel occurring prior to plea went to validity of plea and therefore was not cognizable on appeal in absence of compliance with certificate of probable cause requirements].) Moreover, the second of these arguments—the claim of ineffective assistance based of the claim that counsel improperly advised appellant—is not reviewable on appeal for the additional reason that it is based on matters outside the record, viz., what counsel purportedly advised appellant. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [appellate review on direct appeal limited to appellate record].)
Finally, the fourth argument set forth above is not cognizable on appeal because, although it is based on counsel's conduct after the plea, it is a challenge to the sentence imposed; appellant agreed to the imposition of a specified term, and therefore the argument is, in substance, a challenge to the validity of the plea. (Panizzon, supra, 13 Cal.4th at p. 73.)
Claims of Ineffective Assistance of Appellate Counsel
Appellant argues his appellate counsel was constitutionally ineffective because she failed to raise the following contentions in the instant appeal: (1) the court erred in failing to award appellant presentence credit for the period from December 18, 2009, through October 28, 2010; (2) the court erred in failing to give the Boykin/Tahl admonitions prior to taking appellant's admission of the strike allegations; (3) the court erred in failing to establish a sufficient factual basis for appellant's admission to the strike allegation; (4) the court erred in failing to state adequate reasons for the imposition of the upper term on the count 1 offense; and (5) appellant was denied his right to the effective assistance of counsel on the bases discussed above.
"The burden of proving ineffective assistance of counsel is on the defendant." (People v. Babbitt (1988) 45 Cal.3d 660, 707.) A criminal defendant must show both deficient performance—"that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates," and prejudice—"that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 386.)
As demonstrated above, appellant's claim that he is entitled to presentence credit is without merit, and the remaining issues he faults appellate counsel for not raising are not cognizable on appeal. Therefore, appellant has not met his burden of establishing that appellate counsel's failure to raise these issues on appeal constituted ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.