Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6259930
Robie, J.
Defendant Justin Ray Hamann pled no contest to felony grand theft of personal property. In exchange, the prosecution agreed not to file allegations of failure to appear in court. Imposition of sentence was suspended and defendant was placed on probation for three years on the condition, among others, that he serve 120 days in jail with credit for 120 days. He was ordered to pay a $270 fine including penalty assessments, a $200 restitution fine, a $200 restitution fine suspended unless probation is revoked, and a $20 court security fee. Defendant appeals and the trial court issued a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief and he did so. Defendant contends: (1) the prosecutor’s statement of factual basis for the plea was inaccurate and prejudicial; (2) the prosecution bore the burden to prove that he expressly and knowingly waived his rights when he entered his plea; (3) the record contains no evidence that his counsel had discussed with him the consequences of his plea; (4) his trial counsel rendered ineffective assistance; and (5) his counsel perpetrated fraud upon the court.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, defendant entered a Roseville insurance agency and took a laptop computer from the office of Michelle Etchison. He was stopped before he left the building. When Etchison returned to her office, she discovered that her camera was missing. Defendant denied taking the camera. He left before the police arrived.
On November 28, 2006, defendant appeared in court represented by Placer County Assistant Public Defender Cynthia Woodburn. Defendant initialed and signed the first page of a two-page (or two-sided) plea form. Then he entered his no-contest plea.
On December 12, 2006, the matter came on for sentencing. Woodburn stated that defendant had expressed a desire to withdraw his plea, based upon his not understanding part of the plea as she had explained it to him. The trial court appointed the conflict defender to represent defendant.
On January 22, 2007, the matter came on with defendant represented by conflicts counsel Julie Mumma. There is no reporter’s transcript of this proceeding. The matter was continued to February 5, 2007.
The clerk’s minutes for February 5, 2007, show that the matter came on with defendant represented by conflicts counsel Cohen. However, the only reporter’s transcript for that date is of a Marsden hearing at which Cynthia Woodburn is listed as counsel. The court (Judge Couzens) warned defendant that if he succeeded in withdrawing his plea, the prosecutor could charge him with two or three counts of failure to appear in court. At the court’s suggestion, the matter was continued to February 20, 2007, so that defendant and Woodburn could discuss defendant’s potential exposure if the plea were withdrawn.
People v. Marsden (1970) 2 Cal.3d 118.
In the interim, on February 14, 2007, defendant filed a pro. per. motion to withdraw his plea. When the matter came on for hearing on February 20, defendant was not present and a bench warrant was ordered.
In March 2007, defendant filed another pro. per. motion to withdraw his plea. The prosecution filed opposition to the motion.
On May 2, 2007, the motion came on for hearing before Judge Jeffrey Penney. Defendant was represented by attorney Gregory Elvine-Kreis. Defendant testified on direct examination that Woodburn had told him that if he did not enter his plea, he could be “look[ing] at serious jail time for failure to appear.” Defendant stated he was “very concerned that [Woodburn] did coerce [him] and intimidate [him].” Defendant’s counsel asked, “And did she go over the front and back of all of the forms with you if you recall?” Defendant answered, “She just asked me to initial it and sign it and she would explain it to me later.”
On cross-examination, the prosecutor introduced People’s exhibit 1, a copy of the plea form that bears the signatures of defendant and Woodburn but not that of Judge Couzens.
Exhibit 1 varies from the original plea form in the clerk’s transcript (original) in several additional respects. Page one of exhibit 1, but not the original, includes in the upper right-hand corner, a handwritten notation of the date and time of the next hearing (“12/12 at 8:30”). Page one of exhibit 1, but not the original, bears a partially obscured reference Penal Code section 476. Page one of exhibit 1, but not the original, includes at the right margin a column of six stars and three sets of two “letters.” The column appears to be a mirror image, as opposed to an exact copy, of a column of six stars and three sets of two letters that appears in the left margin of page two of exhibit 1. None of the stars or sets of two letters appears on either page of the original plea form.
At the hearing, defendant told the prosecutor that he recognized his initials and signature on exhibit 1. He testified that during the plea colloquy with the court, he merely repeated the words that Woodburn was whispering to him.
The prosecution called attorney Woodburn who described the “standard operating procedure” on how she discusses plea forms with her clients. She testified that she “take[s] the plea form” and “talk[s] to the client in the back.” She discusses the list of charges, the acknowledgment of rights, and the waiver of rights. When discussing consequences of the plea related to guns, ammunition, DNA samples, and subsequent use of the plea to prove a prior conviction, Woodburn writes words related to those topics in the left margin of page one of the plea form.
Woodburn testified that she and her clients “usually go over the back of the form where [she] either make[s] an asterisk, a star, or a checkmark on the back of the form as to those sections that particularly relate to them. [¶] Some of them [she] will put not applicable, like citizenship.”
In summary, Woodburn stated that she and her clients “start on the front of the form, I add in my own little section on the side, and we go over the back of the form.”
The prosecutor then showed Woodburn exhibit 1, which she recognized. She identified her handwritten notations regarding “Guns, ammo, voting, DNA, and priorable, referring to prior prison terms.” The prosecutor then showed Woodburn the back side of exhibit 1 and noted that “there are some asterisks and three of them to the left of some of these terms.” The prosecutor asked, “And, again, you went over all of those with this defendant here on the day he entered the plea; correct?” Woodburn answered, “Yes. Everything that has an asterisk on it we specifically talked about. Even those that say NA, I tell them -- for example, the first one is serious felony, three strikes. [¶] I tell them, ‘This is not a serious felony. This is not a three strikes. This section does not apply to you.’”
Woodburn testified that defendant never expressed that he did not know what he was doing or that she was coercing or intimidating him. She testified that if he had expressed such things, she would not have proceeded with the plea because there would not have been a knowing, intelligent, and voluntary waiver.
Woodburn testified that she recalled “bits of the plea being taken” in this case. She denied coercing or intimidating defendant and claimed she had told him that he could take the case to a jury trial if he wanted.
In his ruling, Judge Penney acknowledged defendant’s testimony that he was told, “his case was next, to sign the form, then I’ll explain the details later.” Judge Penney found: “Ms. Woodburn went through the form with [defendant], evidence indicates, went through the rights on the form. He initialed and signed the form. [¶] There were, in fact, additional items on the side of the form that Ms. Woodburn discussed with him, implications of his conviction regarding possession of firearms, ammunition, whether it had any effect on his ability to vote[,] DNA issues, and whether the defense [sic] was priorable. [¶] She discussed items also on the back of the form, in fact, made notations regarding things on the back of the form that would not apply.... [¶] This is not the first time that the defendant had been through this process, so I could not find that clear and convincing evidence has been presented to show good cause to withdraw the plea, and [the] motion is denied.” Judge Penney ordered the conflict law firm to continue to represent defendant.
Defendant filed a pro. per. motion for rehearing of the denial of his motion to withdraw his plea. On May 31, 2007, the matter came on before Judge Couzens with attorney Cohen representing defendant. Judge Couzens ruled that the matter must be heard by Judge Penney. Before that hearing occurred, defendant, acting in pro. per., evidently filed a “declaration” from a psychiatrist attesting that defendant had been diagnosed with bipolar affective disorder, type 1. Judge Penney heard the motion on June 6, 2007, but the hearing is not included in the reporter’s transcript. The minute order for the hearing states: “Previous motion by defendant was filed in pro. per.. Mr. Elvine-Kreis does not join to that motion. Court does not find any merit in the original motion. Court finds merit with the new report from client[’]s doctor.” Attorney Elvine-Kreis requested a continuance, which evidently was granted.
Two days later, on June 8, 2007, defendant filed a Marsden motion seeking to discharge attorney Elvine-Kreis. At a hearing on June 25, 2007, Judge Couzens denied the motion but he explained that Elvine-Kreis would represent defendant only through the completion of matters related to the motion to withdraw the plea and would not represent defendant at sentencing or on appeal. Judge Couzens directed the court clerk’s office not to accept further pro. per. filings and motions from defendant.
In July 2007, Judge Penney granted attorney Elvine-Kreis’s motion to be relieved as counsel due to conflict. Attorney John Manning was appointed as defendant’s counsel. Also that month, defendant’s motion for reconsideration of his motion to withdraw his plea was dropped.
In October 2007, defendant entered a residential treatment program where he remained for several months.
In February 2008, defendant filed a pro. per. motion in arrest of judgment. For reasons not clear on this record, the clerk’s office filed the motion. In March 2008, the court declined to consider the pro. per. motion because defendant was represented by counsel. Attorney Manning was relieved and the public defender was appointed.
In April 2008, the court relieved the public defender and appointed attorney Charles Pacheco to represent defendant.
In August 2008, defendant (through attorney Pacheco) filed a notice of motion and motion to withdraw his plea. The motion argued that his plea was entered through his own ignorance, inadvertence, and without due deliberation, “due to the stress and pressures placed upon him,” and “due to his system detoxification” following his cessation of unlawful drugs. The motion argued attorney Woodburn had been ineffective in having allowed defendant to enter a plea even though she was aware he was “having problems with drug withdrawals.” The motion further argued that the trial court erred by failing to rule on defendant’s first Marsden motion.
In December 2008, the trial court (Judge Couzens) acknowledged that it had not made a formal ruling on the Marsden motion and explained that this was because “essentially it was moot” once defendant agreed to meet with attorney Woodburn in an effort to work out their differences. The court noted the lack of authority for the proposition that the lack of formal ruling on the motion somehow deprived the court of jurisdiction to conduct further proceedings in the case.
Regarding defendant’s claims that he had been undergoing drug detoxification, and attorney Woodburn had known it, the trial court found “no evidentiary basis in the record as it stands now” to support the claim. The court stated in part: “There is [sic] no facts. There is no declaration by the defendant. There is no testimony by the defendant indicating that such was the case.” The motion to withdraw the plea was denied.
DISCUSSION
We now consider the points raised in defendant’s supplemental brief.
I
Factual Basis For The Plea
The prosecutor stated the factual basis for defendant’s plea as follows: “According to the Roseville Police Department Report Number 114065338, April 24 of 2006, the defendant was seen by the victim removing her laptop from her office. [¶] He did not have permission to remove that from her office or have possession of that item. [¶] In addition, there was a camera missing. The value of the laptop was well in excess of $400, $1725.”
Defendant contends the foregoing statement contains “additions” to, and “omissions” from, the facts that are set forth in the police report. Because the present record contains only page one of the three-page report, we cannot determine whether certain stated facts had been taken from pages two or three, or whether pages two and three contained facts that should have been stated but were not. No prejudicial omission from page one of the report appears. Defendant further contends the prosecution bore the burden to prove that his no contest plea was taken in compliance with constitutional requirements and that he expressly and knowingly waived his rights. However, in challenging his plea on appeal, the burden is not on the People but rather on the defendant to show error in taking the plea. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [it is the defendant’s burden to show error on appeal].)
II
Discussion With Counsel
Defendant contends there is “no evidence on the record that [he] had discussed the range of sentences or any discussion regarding restitution with his attorney.” However, the plea form indicates that the “potential sentencing range” is “16-2-3,” that defendant would be “required to make restitution to the victim(s) for any losses suffered as a result of the crime(s),” and that his attorney has “explained the contents of this form to” defendant. This record supports an inference that defendant and his attorney had at least some discussion of the range of sentences and restitution.
Defendant contends the trial court had a duty to tell him that a no contest plea has the same effect as a guilty plea. Although the change of plea colloquy was brief and relied almost exclusively on the form, the form refers to a plea of “guilty or no contest” with all provisions relating to both. No error has been shown.
III
Ineffective Assistance Of Counsel
Under the heading, “Ineffective Assistance Of Counsel,” defendant sets forth the legal standards for a claim of ineffective assistance. However, his statement of legal standards is not followed by any contention of ineffective assistance in this case. No error is shown.
IV
“Fraud Upon The Court”
Under the heading, “Fraud Upon The Court,” defendant contends attorney Woodburn prepared and presented a document (the plea form -- exhibit 1) that “she knew was fabricated evidence in order to destroy any possibility [defendant] had to a favorable decision.” He claims Woodburn’s “egregious misconduct seriously affected the integrity of the normal process of adjudication.” No error is shown. What is shown, however, is that attorney Woodburn made notations on the plea form not to “fabricate[] evidence” but to document which plea consequences she had discussed with defendant, which restrictions applied to him and which did not, and what she had told him. Defendant’s argument fails.
DISPOSITION
Having undertaken an examination of the entire record, we find no arguable error. The judgment is affirmed.
We concur: Scotland , P. J. Hull , J.