Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. SCR-567354, SCR-569720
Sepulveda, J.
Defendant Charles Garrett Harding appeals following an order granting probation on his no contest plea. (Pen. Code, § 1237, subd. (a).) Defendant’s appointed counsel on appeal reviewed the record of this case, did not identify any trial court errors, and asked this court for an independent review of the record to determine if any arguable issues exist for review on appeal. (Anders v. California (1967) 386 U.S. 738, 744; People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende (1979) 25 Cal.3d 436, 441-442.) Defendant was advised that he could file a supplemental brief with this court raising any issues he wished to call to our attention, and defendant has done so. We have reviewed the record and, finding no errors or arguable issues for review, affirm the judgment.
The statement of facts is based on police testimony at preliminary hearings.
A. Case SCR-569720
On the afternoon of June 7, 2009, a police officer contacted defendant in a Rohnert Park grocery store parking lot. The officer searched defendant and found in his possession over five ounces of marijuana in separate packages, many plastic baggies, a digital scale, and $527 in cash. Defendant also had a medical marijuana card. The officer was looking through defendant’s wallet when defendant said: “take a couple bills for [yourself] and let’s forget about this.” The officer asked defendant to clarify what he meant and defendant said something to the effect of: “take $200 and... let me walk away.” The officer arrested defendant. A narcotics detective testified that it was his expert opinion that defendant possessed the marijuana for sale, given the facts of the case.
B. Case SCR-567354
On the night of August 8, 2009, police officers responded to the report of an intoxicated man on a Rohnert Park street. Officer Adam Strongman arrived at the scene and found defendant who appeared to be under the influence of methamphetamine. Defendant had been released from custody on bail or on his own recognizance following the June 2009 arrest for possessing marijuana described above. When contacted on August 8, 2009, defendant told the officer that he had used methamphetamine three hours earlier, and had also taken a narcotic pain reliever. Officer Strongman arrested defendant, handcuffed him, and placed him in the back seat of a patrol car.
The officer was on Highway 101 driving defendant to jail when defendant broke the car’s side window with his head and stuck his head and upper torso out of the car. Officer Strongman pulled the patrol car to the paved shoulder of the highway and called for backup. Defendant tried to exit the car through the window and was sitting on the window ledge, bleeding amid broken glass, when the officer left the driver’s seat and approached the side of the patrol car. Officer Strongman pulled defendant from the vehicle and defendant used his feet to push against the officer, sending the officer off balance.
Defendant grabbed the officer’s duty belt and gun holster. Officer Strongman pushed defendant’s hands, and defendant released his hold on the holster and ran down the shoulder of the highway. The officer ran after defendant, grabbed him by the ponytail, pulled him back, and “attempted to take him down using a leg sweep.” Defendant struggled and pulled away. The officer succeeded with a leg sweep and brought defendant to the ground, but defendant continued to struggle—kicking his legs, arching his back, and “moving everything.” Additional police officers arrived at the scene. One of the officers used a Taser gun on defendant three times in an effort to subdue him so that leg restraints could be applied, but the Taser did not make defendant compliant. Defendant bit Officer David Sutter on the leg. Eventually, three officers and a paramedic crew of three managed to sedate defendant, and defendant was transported to a hospital for treatment. The patrol car’s shattered rear window was repaired at a cost of $1,048.63. Officer Strongman suffered a back injury from the incident—a spine fracture and bulging disk. The officer required pain medication and physical therapy and was absent from work for three months.
II. PROCEDURAL HISTORY
A complaint based upon the June 7, 2009 incident was filed shortly after the incident, and later refiled on October 9, 2009 under a different case number. The October 2009 complaint charged defendant with three felonies: possessing marijuana for sale, transporting marijuana, and offering a bribe to a police officer. (Health & Saf. Code, §§ 11359, 11360; Pen. Code, § 67.)
The August 8, 2009 incident was first charged by complaint. Six counts were stated in a later filed information: (1) felony vandalism of a patrol car (Pen. Code, § 594, subd. (a)); (2) felony battery with infliction of injury upon Officer Strongman, a peace officer engaged in the performance of his duties (Pen. Code, § 243, subd. (c)(2)); (3) misdemeanor methamphetamine intoxication (Health & Saf. Code, § 11550, subd. (a)); (4) misdemeanor battery upon Officer Sutter, a peace officer engaged in the performance of his duties (Pen. Code 243, subd. (b)); (5) felony assault by means likely to produce great bodily injury upon Officer Strongman, a peace officer (Pen. Code, § 245, subd. (c)), with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)); and (6) felony resisting a police officer (Pen. Code, § 69). It was further alleged that defendant was released from custody on bail or his own recognizance when he committed the felonies.
Defendant was appointed counsel to represent him. Deputy Public Defender James Loughborough initially represented defendant beginning around June 2009, and Deputy Public Defender Christina Davis assumed representation in February 2010 when Loughborough transferred to another department.
At the court’s request, a psychologist examined defendant to determine competency to stand trial. (Pen. Code, § 1368.) In September 2009, the psychologist, Mark Paradis, Ph.D., reported that defendant had been “living a homeless life around Rohnert Park” but was not receiving federal disability benefits nor had he ever been in a mental hospital. Dr. Paradis said defendant had some delusions as a result of a “long history of polysubstance abuse” but was coherent, cooperative, and competent to stand trial.
Separate preliminary hearings were held in December 2009 and February 2010. Trial of the August 2009 incident was set for late February 2010. Defense counsel filed a motion to suppress evidence obtained during the August 2009 incident, claiming that defendant had been illegally detained. (Pen. Code, § 1538.5.) The motion was scheduled to be heard as an in limine motion at trial.
On February 24, 2010, defendant reached a global resolution of the criminal charges pending against him, after extensive discussions with court and counsel. Defendant was represented by Deputy Public Defender Davis. The court stated an indicated sentence of probation conditioned upon serving one year in county jail and participation in a drug treatment program if defendant pleaded no contest to two of the charged felonies. The prosecution agreed to dismiss all remaining counts if the pleas were entered and the indicated sentence imposed. Defendant accepted the indicated sentence.
In case No. SCR-569720 concerning the June 2009 incident, defendant pleaded no contest to a felony count of offering a bribe to a police officer. (Pen. Code, § 67.) In case No. SCR-567354 concerning the August 2009 incident, defendant pleaded no contest to felony battery with infliction of injury upon Officer Strongman. (Pen. Code, § 243, subd. (c)(2).) The prosecutor agreed to dismiss all remaining charges in the two cases at sentencing, as well as a loitering charge (Pen. Code, § 647, subd. (h)) in a separate case (case No. SCR-554279). Defendant was advised of his constitutional rights and all consequences of his plea, including imprisonment for a maximum aggregate term of seven years if he violated probation. Defendant waived his constitutional rights verbally and in writing and acknowledged in open court that he understood the nature of the charges, the rights he was waiving, and the consequences of his plea.
Shortly after entering his plea, defendant wished to withdraw it. On March 18, 2010, the court appointed a private attorney, Walter Rubenstein, to investigate a motion to withdraw the plea. On April 19, 2010, defendant expressed dissatisfaction with both Deputy Public Defender Davis and Attorney Rubenstein, and the court conducted separate Marsden hearings as to each attorney. (People v. Marsden (1970) 2 Cal.3d 118.) The court listened to defendant’s complaints, discussed the issues with counsel, and concluded that defendant was receiving effective legal representation. The court denied the Marsden motions.
Defendant then moved to represent himself. (Faretta v. California (1975) 422 U.S. 806.) On April 26, 2010, the court appointed Dr. Paradis to examine defendant again concerning defendant’s competency. (Pen. Code, § 1368.) On May 4, 2010, the psychologist reported that defendant appeared “coherent and logical, ” “understands the charges he is facing, ” “has a reasonable grasp of the court proceedings with which he is involved, ” and is competent to stand trial. Defendant completed a written form that explained to him the responsibilities of self-representation. The court held a hearing in which it cautioned defendant about the risks of self-representation and questioned defendant about his ability to represent himself. After a lengthy exchange with defendant, the court granted his self-representation motion.
On May 11, 2010, defendant filed a motion to withdraw his plea. Defendant argued that he should be entitled to withdraw his plea because (1) Deputy Public Defender Davis told defendant he could withdraw his plea at any time; (2) there was never “an ongoing amicable relationship” with Davis, who failed to adequately discuss the case with him; (3) defendant was taking a “psyke [sic] med at time of negotiations”; (4) “[n]ot all penalties were explained” such as “not being able to hold office”; (5) defendant had new information and a “new defense strategy” that would defeat a guilty verdict; (6) there had been “many threats and much cajoling from the court”; (7) a specific drug treatment program, TASC, was part of the plea agreement, and defendant’s plea to a violent crime barred his admission to that program; and (8) “defense attorney Long was not present during negotiations of misdemeanor cases.”
The court held an extensive evidentiary hearing on the motion to withdraw the plea on seven separate days between June 25, 2010 and July 19, 2010. Defendant called several witnesses to testify: a county jail psychiatrist, a TASC representative, and Deputy Public Defenders Davis and Loughborough. The psychiatrist, Patricia Winters, M.D., testified that defendant was taking a “low dose” of an antipsychotic drug, Abilify, in late February 2010, when the plea negotiations occurred. Dr. Winters said Ablify may be administered for temporary (acute) psychosis, chronic psychosis, or temporary delirium. The psychiatrist testified that a psychosis is characterized by “disorganization and the presence of an internal preoccupation.” Dr. Winters was asked on cross examination if, in her experience, it is “common for Abilify to cause impairment, ” and she answered “[n]o.” The only side effect of Abilify she noted was over-stimulation.
The TASC representative, Regina Ramos-Hooker, testified on cross-examination that defendant was denied admission into the drug treatment program because defendant’s statements in his application were “incomplete” and failed to show that he assumed personal responsibility for his actions. Ramos-Hooker said that the denial “didn’t have anything to do with his [criminal] charges, ” and that TASC would still consider accepting defendant into the program if he filled out the forms completely and “showed interest in treatment.”
The hearing concluded on July 19, 2010, with closing statements by defendant and the prosecutor. The court denied the motion, finding no good cause to withdraw the plea after stating extensive factual findings based on the evidence. (Pen. Code, § 1018.) The court found that Deputy Public Defenders Loughborough and Davis reviewed relevant records and medical files, met with defendant multiple times, discussed the case with him, answered his questions, made pertinent motions, and otherwise provided effective assistance of counsel. The court further found that defendant was denied TASC admission because of “the motivational issue” and that, in any event, TASC admission was not a condition of the plea. The court also found that defendant’s medication did not impair his ability to enter a knowing and voluntary plea, and noted that the court itself observed defendant during the hours of the plea negotiation and found him “clear-minded.”
A sentencing hearing was held on July 23, 2010. In accordance with its prior indication, the court suspended imposition of judgment, granted probation, and referred defendant to a drug treatment program. Probation was conditioned upon defendant serving one year in county jail, which had already been served. Defendant was released from custody on the day of sentencing. He filed a timely notice of appeal on July 27, 2010. Defendant’s appellate counsel advises us that defendant’s probation was subsequently revoked, defendant was sentenced to state prison, and a separate appeal of that matter is pending in this court (People v. Harding, A131334).
III. DISCUSSION
As noted at the outset, defendant’s appointed counsel on appeal reviewed the record of this case, did not identify any trial court errors, and asked this court for an independent review of the record to determine if any arguable issues exist for review on appeal. (Anders v. California, supra, 386 U.S. at p. 744; People v. Kelly, supra, 40 Cal.4th at p. 119; People v. Wende, supra, 25 Cal.3d at pp. 441-442.) Defendant has filed a brief raising various issues. We have reviewed defendant’s brief and the record. We find no errors or arguable issues for review.
The central issue here is defendant’s plea, and his motion to withdraw the plea. As the trial court rightly noted, a motion to withdraw a guilty or no contest plea must be supported by a showing of good cause. (Pen. Code, § 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.” (Cruz, supra, at p. 566.) “Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
The motion to withdraw the plea was properly denied here. There was no evidence that defendant’s free judgment was overcome when he entered his plea. On the contrary, the proceedings at the time of the plea, and the subsequent hearing on defendant’s motion to withdraw his plea, clearly show that defendant knowingly and voluntarily entered his plea. The court had extensive, hours-long discussions with defendant leading up to entry of his plea, and defendant had ample opportunity to consult with his appointed attorney about the terms of the plea and the lenient sentence indicated by the court. Defendant was advised verbally and in writing about the consequences of his plea, and his responses in open court show a keen understanding of the plea and the indicated sentence. While there was evidence that defendant was prescribed an antipsychotic drug at the time of the plea negotiations, a psychiatrist testified that the drug does not impair cognition, and the record of the plea negotiations shows no impairment. There was no evidence that defendant suffers from chronic psychoses or any mental disorder that would render his plea involuntary and, in fact, previous psychological examinations of defendant found him able to understand the proceedings and fully competent to stand trial.
In his brief on appeal, defendant claims that his plea was conditioned upon admission into the TASC treatment program and that he should have been allowed to withdraw his no contest plea when he was refused admission. The record refutes the claim. At the February 24, 2010 hearing, the court stated that its indicated sentence was for probation with completion of a drug treatment program. The court’s preferred program was TASC, but it was not the only program. The judge explained to defendant: “The Court is indicating T.A.S.C. is the program the Court wants you to go through, because T.A.S.C. works with the courts and will advise the court. They’re a very, very good program and helped many clients that I have had as a deputy public defender.” But the court also explained that “it takes awhile to apply to T.A.S.C.” and that admission was not guaranteed. The court said, “hopefully” defendant will be accepted by “some type of residential treatment program.” Admission into TASC was not promised in exchange for defendant’s no contest plea.
Defendant also claims that he was denied effective assistance of counsel in the trial court and on appeal. The claim finds no support in the record. “In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
Trial counsel’s performance was scrutinized during the Marsden hearing and the court found that counsel had provided effective representation. (People v. Marsden, supra, 2 Cal.3d 118.) We agree. We have reviewed all transcripts and proceedings in this case, including the extensive exploration of defendant’s grievances during the Marsden hearing, and find no basis for faulting counsel’s performance. Defendant also suffered no prejudice. Defendant obtained a highly favorable disposition with a grant of probation when he faced serious charges carrying the threat of a long prison term. Given the facts presented here, there is no reasonable probability that, but for any alleged errors by counsel, the result of the proceeding would have been more favorable to defendant. (People v. Ledesma, supra, 39 Cal.4th at p. 746.)
Nor do we discern any deficiency in appellate counsel’s representation. Defendant asserts that appellate counsel is ineffective because he filed a Wende brief. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.) Defendant says: “That a person even has to do a supplemental report to a no issue brief shows incompetence and ineffective assistance of counsel.” Defendant is mistaken. An appellate attorney properly files a Wende brief where, as here, there are no arguable issues. We deny defendant’s request to relieve counsel.
IV. DISPOSITION
The order is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.