Opinion
A154667
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EUGENE DECKER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR946549)-E
Following defendant's plea of no contest to felony possession of controlled substances where prisoners are kept, the trial court sentenced him to 11 years in state prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 27, 2017, two correctional officers at the Konocti Conservation Camp saw headlights from a vehicle driving on the main access road toward the camp. The vehicle stopped for a short time and then turned around and drove away. After hearing footsteps, the officers observed defendant, an inmate housed at the camp, carrying two white plastic bags. Defendant dropped one of the bags and ran away from the camp towards the highway. As the officers pursued defendant, he threw items into the brush on the side of the road. After defendant was apprehended, officers conducted a search of the area and recovered various items, including ten hypodermic syringes, three 1.75-liter bottles of vodka, a baggie containing 3.2 grams of methamphetamine, and two baggies containing a total of 5.2 grams of heroin.
An information was filed, after defendant waived a preliminary hearing, charging him with four counts of possession of controlled substances in the Konocti Conservation Camp (Pen. Code, 4573.6) with a strike prior (§§ 667, subd. (d); 1170.12, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
Defendant asked the trial court to appoint new counsel for him because he did not feel there was any "trust" between him and his present counsel. (People v. Marsden (1970) 2 Cal.3d 118.) He complained his counsel recommended he take a six-year offer because the court would sentence him to 14 years, and that he would be "crazy" to make a counteroffer. Defendant also claimed his counsel was ineffective for failing to file a Romero motion to strike the prior strike conviction, and she "belittle[d]" him.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In response to defendant's complaints, his counsel responded she told defendant that if the case went to trial, it was her opinion he would lose. And she encouraged him to "hurry up with a resolution of his case." She did not believe defendant had a defense to the charged offenses, and suggested to him on several occasions that unless he wanted to disclose "the source of the person who was throwing these bags, which he's not inclined to do, we don't have a very good case for him, and have encouraged him to take the plea disposition." Counsel explained she did not believe the court would grant a Romero motion for a strike for which defendant was currently serving a prison sentence. Counsel further indicated she tried to "impart" to him the seriousness of his situation; however, defendant informed her he was not going to take the deal. And she attempted to "follow his wishes and set a trial date without a time waiver." Additionally, counsel informed the court she sent defendant his discovery, met with him at least two times, and spoke with him frequently in court.
Finding defense counsel was "effectively representing" defendant, the trial court denied his motion for a new attorney.
Defendant ultimately pleaded no contest to one count of felony possession of controlled substances at Konocti Conservation Camp. The remaining counts were dismissed on the People's motion.
At the time of defendant's plea to the current case, he was serving a prison sentence arising from four Shasta County cases. The court resentenced defendant on those cases to the same five-year sentence and ran the six-year sentence in the current case consecutive for a total prison sentence of eleven years. The court sentenced defendant to three years for the principal case of attempted robbery (§§ 211, 664), one-third the midterm of eight months for felony grand theft, one-third the midterm of eight months for felony grand theft (§ 487), one-third the midterm of eight months for felony failure to appear (§ 1320), and the midterm of three years for possession of drugs where prisoners are kept, doubled to six years for the prior strike (§§ 1170.12, subd. (c); 4573.6).
After defendant filed a timely notice of appeal, the trial court issued a certificate of probable cause to challenge the validity of the plea. Defendant claims his counsel was ineffective for failing to advise him of "fully consecutive sentencing for persons currently serving state prison sentences."
DISCUSSION
Defendant's counsel has filed a brief setting forth the facts of the case but advising the court under the authority of People v. Wende (1979) 25 Cal.3d 436, no issues were found to argue on defendant's behalf. Counsel has also apprised us in his declaration that he has notified defendant he can file a supplemental brief with this court. No supplemental brief has been received.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently examined the record to see if any arguable issue is present. We have found none.
By entering a plea of no contest, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue going to the question of guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
Because the trial court issued a certificate of probable cause, we have reviewed defendant's plea and waiver of rights. Following our review of the plea and sentencing transcripts and records, including the written plea form signed and initialed by defendant, we find he freely, knowingly, and voluntarily waived his constitutional rights. Though defendant asserts his attorney did not explain the six-year sentence in his current case would run consecutively to the five-year term in the four Shasta County cases, his claim is belied by the record. Before imposing the six-year consecutive sentence, the judge asked defendant if he understood the six-year term was a "Full-term consecutive." Defendant replied he did, after which the court asked him if he wished to proceed with that understanding and the defendant replied, "Yes, sir." Defendant, at no time, expressed any concern or objection to receiving a consecutive sentence. Moreover, defendant initialed a box in the waiver of rights form that, among other things, stated he had discussed with his attorney "[t]he consequences of this plea."
The trial court did not abuse its discretion in denying defendant's motion for appointment of new counsel after giving defendant an opportunity to state his complaints concerning his trial counsel, and counsel an opportunity to respond. The record reflects defendant's complaints focused on the six-year offer and counsel's refusal to file a Romero motion. Defendant has failed to demonstrate how the failure to replace counsel substantially impaired his right to effective assistance of counsel. Counsel reasonably advised defendant to take the six-year offer rather than exposing himself to a longer sentence if he went to trial because substantial evidence established defendant possessed controlled substances at Konocti Conservation Camp. And counsel honestly assessed that the court would not grant a Romero motion. In short, defendant was ably represented by counsel throughout the proceedings.
We further find no meritorious issues requiring reversal of the judgment.
In sum, we agree with appellate counsel that no issues are present undermining defendant's no contest plea or sentence.
DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Kelly, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------