Opinion
A132509
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. KALVIN CRAVEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C162632)
Appellant Kalvin Craven was charged by information with felony violations of human trafficking of a minor (Pen. Code, § 236.1, subd. (c); count I); pandering by encouraging (§ 266i, subd. (a)(2); count II); kidnapping to exact financial gain from a female body (§ 209, subd. (a); count III); attempted second degree robbery (§§ 211, 664; count IV); shooting at an occupied vehicle (§ 246, subd. (a); count V); mayhem (§ 203; count VI); two counts of attempting to dissuade a witness (§§ 136.1, subd. (a)(2), 664; counts VII, VIII); human trafficking (§ 236.1, subd. (a); count IX); and assault with a firearm (§ 245, subd. (a)(2); count X). Use of a firearm (§ 12022.5, subd. (a)) enhancements were alleged as to counts I, II, III, and IX. Sentencing enhancements alleging personal infliction of great bodily injury (§ 12022.7, subd. (a)) were alleged as to counts IV, V and VI. Personal and intentional discharge of a firearm (§ 12022.53, subd. (d)) enhancements were alleged as to counts IV, V, and VI.
All further statutory references are to the Penal Code unless otherwise indicated.
On February 16, 2011, the court granted Craven's motion to represent himself. On March 1, 2011, pursuant to a personally negotiated disposition, Craven entered a plea of no contest to human trafficking of a minor (§ 236.1, subd. (c); count I), and admitted the firearm use (§ 12022.5, subd. (a)) enhancement allegation as to that count. The remaining charges were dismissed and Craven received a stipulated prison term of eight years.
On April 12, 2010, Craven was permitted to withdraw an earlier entered plea.
On June 10, 2011, the public defender was appointed to represent Craven, at his request. On June 14, 2011, Craven requested new counsel. An in camera hearing was held on June 14 and June 24, 2011 pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).On June 24, 2011, the motion was denied. On June 27, 2011, Craven was sentenced to the agreed prison term of eight years. Craven was awarded a total of 1,309 days credit for time served (1,139 actual days plus 170 days under § 2933.1). The court imposed a restitution fine in the amount of $1,600 (§ 1202.4), and stayed a $1,600 parole revocation fine (§ 1202.45).
Craven filed a timely notice of appeal.
Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Craven was advised of his right to personally file a supplemental brief raising any points which he wished to call to the court's attention. On January 18, 2012, Craven submitted a supplemental brief challenging only his sentencing on the firearm use enhancement. As required, we have also independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.)
People v. Wende (1979) 25 Cal.3d 436.
We find no arguable issues and therefore affirm.
BACKGROUND
Craven did not seek or obtain a certificate of probable cause under section 1237.5. There are therefore no cognizable issues relating to Craven's guilt, or to his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099 (Mendez).)Craven's notice of appeal seeks review of "the sentence or other matters occurring after the plea that do not affect the validity of the plea." (Cal. Rules of Court, rule 8.304(b).) We therefore provide the facts underlying Craven's conviction only for context.
The facts are set forth in the probation report dated June 27, 2011.
Craven met a 17-year-old female and had been pimping her for money for about three weeks. The girl wanted out of that lifestyle, and she enlisted the aid of a minister she had met on the street. On May 15, 2008, at approximately 8:30 p.m., the minister drove her back to the Economy Inn in Oakland where she was staying with Craven, so that she could gather her belongings. Craven approached the passenger side of the minister's vehicle as the girl exited. Craven then leaned into the vehicle and said to the minister, "Give me everything you have, break yourself or I'll smoke you!" The minister told Craven that he did not want to do that, and Craven shot him in the right arm and then fled. Oakland police were called and apprehended Craven.
DISCUSSION
Under section 1237.5 and California Rules of Court, rule 8.304(b), a defendant seeking to appeal after entering a guilty or no contest plea generally must first obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 74, 76 (Panizzon).) Since Craven did not obtain a certificate of probable cause, the scope of issues cognizable on appeal is narrow.
Craven's plea also included a specific waiver of any right to appeal. Since we find no arguable issues presented, we need not address the effect of this waiver.
A defendant does not need a certificate of probable cause to appeal the trial court's ruling on a post-plea Marsden motion. (People v. Vera (2004) 122 Cal.App.4th 970, 978.) We have therefore reviewed the transcripts of the two hearings on Craven's motion.
Here the court allowed Craven to explain the basis of his complaints and to describe specific instances of his attorney's purportedly inadequate performance. (Marsden, supra, 2 Cal.3d at pp. 124-125; People v. Fierro (1991) 1 Cal.4th 173, 204.) Craven sought appointment of different counsel to investigate and present a motion to withdraw his plea, insisting that his current counsel had conflicts in doing so. The majority of Craven's complaints were directed to what he alleged was ineffective representation by a different public defender at his preliminary hearing. Many of his complaints related to alleged failures of his originally appointed attorney to investigate his case, and his disagreements with the evaluation made by counsel of various motions Craven wanted to file. Counsel (present and former) responded in detail. The court found Craven less than entirely credible. Craven advised the court that he would not seek to withdraw his plea if his Marsden motion was denied.
New counsel must be appointed only if "the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the . . . attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.]" (People v. Smith (1993) 6 Cal.4th 684, 696.) We review a court's ruling on a Marsden motion under the deferential abuse of discretion standard and will not reverse " 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]' [Citation.]" (People v. Carter (2010) 182 Cal.App.4th 522, 527; see also People v. Earp (1999) 20 Cal.4th 826, 876.) No arguable issue is presented.
At the time of sentencing, when presenting his notice of appeal, Craven stated that he was not challenging the validity of his plea, but wanted to appeal "something that pertains to the sentence." In the course of his Marsden hearing, he questioned the application of the firearm use enhancement, and argued that it would not be a legal sentence. He makes the same argument in his supplemental brief. The basis of Craven's argument is that his stipulated sentence is "illegal" because there is no evidence that he used a firearm in the commission of the underlying offense of human trafficking of a minor (§ 236.1, subd. (c).) No arguable issue is presented.
In the first instance, Craven's claim is essentially that there was no factual basis to support his plea. This is a challenge to the plea that is not cognizable in the absence of a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 89.) A criminal defendant who receives the benefit of his plea bargain should not be allowed to seek to improve the bargain on appeal. (People v. Cuevas (2008) 44 Cal.4th 374, 383.) Since the firearm use clause was admitted as part of the plea bargain, Craven is unable to now challenge the factual basis for the enhancement. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.) Further, with respect to plea bargains, our Supreme Court has held that "[w]here the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction." (People v. Hester (2000) 22 Cal.4th 290, 295, italics omitted.)
Craven's claim is, in any event, factually incorrect. While we were not provided with the transcript of his plea (because he has not challenged his plea), in the transcript of the June 14, 2011 Marsden hearing, Judge Reardon reads from the plea transcript in his colloquy with Craven. He notes that Craven entered a separate plea of no contest to the firearm use clause, and that he agreed that the preliminary hearing transcript would provide a factual basis for the plea. The victim testified at the preliminary hearing that Craven regularly carried a .357 magnum pistol in his waistband, that he threatened her and brandished the weapon in her face "to show more power over me," and that she feared he would use the gun on her if she did not do what he said. The magistrate cited this testimony in finding that the victim engaged in prostitution "under the relatively constant threat of injury from a gun," and holding Craven to answer on the firearm use clause.
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DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Needham, J.