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People v. Forch

California Court of Appeals, Second District, Eighth Division
Feb 7, 2011
No. B221505 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA030634, Kathleen Blanchard, Judge.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


RUBIN, J.

Defendant Franklin Forch appeals his conviction of one count of second degree murder. Following a plea of no contest and admission of various enhancements, defendant was sentenced to 23 years to life in state prison.

FACTUAL AND PROCEDURAL BACKGROUND

Because defendant pled no contest before trial, we state the facts only briefly and take them from the transcript of the preliminary hearing. On September 26, 2004, after his mother had asked him to pick up a soda bottle from in front of her home, defendant assaulted his mother, hitting her several times in the head. Defendant then turned his attention to his stepfather, Milton Tutt, hitting and kicking Tutt in the head. Defendant next chased his mother around the house, hitting and kicking her again. At some point during the assaults, defendant had a kitchen knife in his hand but did not cut either victim.

Following receipt of a 9-1-1 call, deputy sheriffs arrived on the scene. Defendant was outside the home with a barbell in his hand, at which point the deputies subdued him with stun bags. One deputy described victim Tutt as dazed, with a blunt laceration on his right eye and a swollen and bloody nose. Tutt later died. Preliminary autopsy reports from the coroner’s office indicated that blunt force trauma was either a leading or a contributing cause of Tutt’s death.

Defendant was represented by counsel at the preliminary hearing, although from time to time he personally made objections and otherwise disrupted the proceedings. About two-thirds of the way through the preliminary hearing, the court ordered defendant “moved to the box where he will [be] able to see and hear the proceedings.” No objection was made to the court’s order.

An 11-count information was filed, charging defendant with the murder of Tutt, multiple counts of elder abuse and felony assault of Tutt and defendant’s mother, and three misdemeanor counts arising out of the attacks. Enhancements related to the age of the victims, actual infliction of great bodily injury, and defendant’s prior record were also alleged, as was a second “strike” under the Three Strikes Law.

On February 28, 2005, the trial court granted defendant’s request to represent himself, and thereafter appointed attorney Michael Morse as “standby counsel.” Various discovery and other orders relating to defendant’s pro per status were made, and the court denied defendant’s request to discharge standby counsel

Although the record is not clear on this point, sometime before June 14, 2005, defendant was placed in a “mental” unit in county jail. On June 27, 2005, the court ordered a doctor’s report concerning defendant’s custody status. Over the next several weeks, the court reevaluated defendant’s mental condition and inquired of defendant whether he wished to remain in pro per. Defendant replied that he did. The minutes from August 23, 2005, indicate that defendant was admonished four times not to interrupt the court. On September 1, 2005, with trial scheduled for September 7th, defendant requested a referral to Department 95, the trial court department that handles proceedings when there is a doubt about a defendant’s competency. (Pen. Code, §§ 1367-1370.) The court asked defendant whether he wished to waive time. Defendant refused and said he wanted to hire a private attorney. Trial was continued to September 8, 2005, as the 56th day of 60.

On September 8, 2005, after taking testimony from sheriff’s deputies and inquiring further from defendant, the court declared a doubt as to defendant’s competency to stand trial, and adjourned criminal proceedings. Pursuant to Penal Code section 1368, subdivision (a) counsel was appointed for defendant. Over defendant’s objection, the District Attorney and defense counsel waived jury for the competency trial which took place on March 16, 2006.

During the competency trial, defendant was repeatedly admonished for making outbursts. On April 17, 2006, the court declared defendant incompetent to stand trial and recommended that he be placed at Patton State Hospital with a maximum confinement date of September 25, 2007. Defendant remained at Patton until August of 2007. In the interim, he sought release by way of habeas corpus petition, which was denied, and the District Attorney’s office indicated its intent to commence conservatorship proceedings.

On August 23, 2007, his competency restored, defendant appeared in court with appointed counsel and asked to represent himself. On September 7, 2007, defendant was again given pro per status, with Morse again to act as standby counsel; After many continuances, most of which were at defendant’s request, trial was set for February 10, 2009. Proceedings were again continued, and on February 20 and 27, 2009, the court conducted a hearing on the revocation of defendant’s pro per privileges. Witnesses testified on defendant’s conduct while in jail, and the trial court reviewed with defendant his history of disruptive behavior in court during the many months of pretrial proceedings. Defendant’s pro per status was then revoked, and Morse was appointed attorney of record. Defense counsel expressed a doubt about defendant’s competency. The court refused to declare a doubt, but did sign an order appointing a psychiatrist to evaluate the defendant. (Evid. Code, § 730.)

The court granted a series of continuances either at defendant’s request or otherwise for good cause, and on October 19, 2009, the case was assigned to a department for trial. Defendant’s motion under People v. Marsden (1970) 2 Cal.3d 118 was denied. In the trial department the court found good cause to utilize a stealth belt on defendant during proceedings before the jury. (See People v. Tuilaepa (1992) 4 Cal.4th 569, 583-585.) On October 22, 2009, before voir dire was completed, the parties agreed to a plea disposition. Defendant then pled no contest to one count of second degree murder, admitted three one-year prison priors (Pen. Code, § 667.5, subd. (b)) and one five-year serious felony prior (Pen. Code, § 667, subd. (a)(1)), and received a 23 year sentence. The remaining counts and enhancements were dismissed, and the court granted the People’s motion to dismiss the second strike allegation for plea purposes only.

DISCUSSION

Defendant filed a notice of appeal. On August 17, 2010, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration from counsel that he had reviewed the record and had written defendant advising him that a Wende brief would be filed and that he could file a supplemental brief if he wished. The next day, this court sent defendant a letter advising him that a Wende brief had been filed and that he had 30 days to submit a brief raising any issues he wanted the court to consider.

On September 20, 2010, the court received a letter from defendant with a state prison return address. In that letter, defendant asked “for a two or three months postponement.” On September 21, 2010, the court extended the deadline for filing a supplemental brief to October 18, 2010. On October 4, 2010, the court received another letter from defendant asking for a copy of the transcripts in the case, a copy of the Wende brief, and another extension of time. On October 12, 2010, the court extended the time for filing a supplemental brief until November 18, 2010. Included with the mailed order was a copy of the Wende brief. The envelope in which the brief and the court’s order were placed was addressed to defendant at the state prison facility that defendant has used on his correspondence with the court. On October 22, 2010, the envelope and its contents were returned to the court marked: “Refused (says he cannot write.).”

On January 27, and February 3, 2011, the court received two more letters from defendant which included a request for an extension of two to six months because of the conditions of his confinement. These last requests for extension were denied. He did not ask for any transcripts, nor did he make a showing of need for such material or that they were unavailable through his attorney. Because this appeal was from a plea of no contest and no certificate of probable cause was obtained, the issues cognizable on appeal were extremely limited. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304, subd. (b).) The transcript on appeal contains the defendant’s plea and sentence.

Defendant filed a request for a certificate of probable cause. The court denied the request and writ review of that order was not sought in this court. (People v. Johnson (2009) 47 Cal.4th 668, 676.)

Having examined the entire record and considered the contents of defendant’s letters, we are satisfied that defendant’s appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: BIGELOW, P. J., FLIER, J.


Summaries of

People v. Forch

California Court of Appeals, Second District, Eighth Division
Feb 7, 2011
No. B221505 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Forch

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANKLIN FORCH, Defendant and…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Feb 7, 2011

Citations

No. B221505 (Cal. Ct. App. Feb. 7, 2011)

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