Opinion
F076191
05-08-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL HERNANDEZ, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF012467A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson J., and Smith, J.
-ooOoo-
Appointed counsel for defendant Juan Manuel Hernandez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. In response, he contends the charges against him were false, he is innocent, and he was pressured into accepting the plea offer. We affirm.
BACKGROUND
On April 17, 2017, defendant's girlfriend's ex-boyfriend (the victim) came to defendant's residence to get his property back from the girlfriend. Defendant threatened the victim with a shotgun. Defendant punched the victim and hit him with the shotgun, causing a cut and a facial fracture. The responding deputies believed defendant was under the influence of a controlled substance, although defendant denied it. The deputies took a urine sample from defendant.
On April 19, 2017, the Kern County District Attorney charged defendant with assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 1), possession of methamphetamine while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 2), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), possession of a loaded and operable firearm while under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (e); count 4), and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 5). As to count 3, the complaint alleged defendant personally inflicted great bodily injury upon the victim (§ 12022.7).
On April 27, 2017, the trial court dismissed counts 2 and 4 on the motion of the prosecution.
On May 5, 2017, counsel stipulated to a factual basis for count 1, and defendant pled no contest to assault with a firearm (§ 245, subd. (a)(2)) in exchange for probation with up to one year in county jail and dismissal of counts 3 and 5.
On June 2, 2017, defendant moved to withdraw his plea on the ground that he had received ineffective assistance of counsel. The trial court appointed new counsel for the purpose of determining if there was a viable motion to withdraw the plea. Defendant told the court he was not guilty of the drug charges and his urine test would be negative. The court explained that his plea had nothing to do with the drug charges, and his greatest exposure came from other possible charges. The court explained that he could be exposed to 17 years in prison on the single count of assault with force likely to produce great bodily (§ 245, subd. (a)(4); count 3) plus possible enhancements.
"THE COURT: [U]ltimately, the plea you agreed to had nothing to do with any drug-related charges. It may have had something to do with your view of your options and your choices, I understand that.
"Candidly, the enhancements that I discussed add significantly more time to your exposure than anything related to the narcotics that might have been involved in this case, but that's a separate issue.
"THE DEFENDANT: Excuse me. Can you repeat that?
"THE COURT: Well, I discussed when I was talking about possible charges in response to [defense counsel], there are charges that can be filed that are not filed in your charging document or your complaint related to your use or alleged use of a firearm in this case. You don't have to have shot the firearm in order to be guilty of using a firearm—
"THE DEFENDANT: Yes.
"THE COURT: —okay? [¶] And they would add potentially three—you could be sentenced to one of three options, three, four or ten years as a result of the use of a firearm during the commission of certain felonies, including at least two felonies that are charged against you in this case. That would add, obviously, significant exposure to what you were facing otherwise, because, for example, if you were guilty in Count 3 of the [section] 245[, subdivision ](a)(4), assault with force likely to produce great
bodily injury, if you were found guilty of that and you were found guilty that you used a firearm during the commission of that crime and you were also found guilty of the great bodily injury enhancement that is alleged currently, your total exposure just on that one charge would be 17 years in state prison, okay? [¶] And I'm not trying to threaten you or anything like that.
"THE DEFENDANT: Yes, uh-huh.
"THE COURT: I'm just telling you the legal reality that could have been in place, and I don't know if that was part of the [plea] discussion or not. [¶] But at this time what we are doing is we will go ahead and we've appointed Mr. Kinney. We will set the matter one week from today for confirmation of counsel and sentencing, and at that time Mr. Kinney will be able to have a conversation with you to determine how to proceed next, and he'll present that to the Court on that date, okay?
"THE DEFENDANT: Could I ask something else?
"THE COURT: Yes.
"THE DEFENDANT: The firearm was registered, too, sir. You know that, right?
"THE COURT: It doesn't matter if it was registered. You could have legally owned it, but that doesn't mean that you didn't illegally use it. So there's a lot of factual and legal considerations there that have a lot of impact on how this all plays. [¶] I'm just telling you what is a possibility, not what is going to be or what could be. I'm just telling you what is possible.
"THE DEFENDANT: Yes. [¶] [Defense counsel] never explained that to me. I don't know if he knew about it or what, he never mentioned that to me.
"THE COURT: Okay. And I'm not trying to suggest—
"THE DEFENDANT: Yes.
"THE COURT: I mean that makes your case even—I'll be honest with you, that makes it seem even more reasonable that you would have wanted to have greater control over the outcome by entering into a plea than not entering into a plea, given that increased possible exposure, and I'm not making any findings on the validity of the plea at this point because
that's not before me. What's before me is whether or not you need a new attorney to be able to represent you on a possible motion to withdraw a plea, and I have made a finding that that is appropriate and I've [ap]pointed William Kinney, and we'll see you back here at 10:00 a.m. on June 9, 2017 ....
"THE DEFENDANT: Thank you."
On June 9, 2017, defendant appeared with his new counsel. They had discussed the matter and wished to withdraw the motion to withdraw the plea. Counsel requested time to prepare an argument for a lesser jail term than the nine months recommended by the probation officer. The trial court confirmed with defendant that he had discussed the matter with counsel and wished to follow this plan.
On June 14, 2017, at the sentencing hearing, defense counsel argued for no more than six months' jail time or, alternatively, work release. The prosecutor argued for the full year or at least the recommended nine months. The trial court suspended imposition of sentence and granted defendant three years' probation with nine months in county jail. The court awarded custody credits and imposed various fines and fees.
Defendant's urine test results, dated May 18, 2017, were negative.
On August 16, 2017, defendant filed a notice of appeal. The trial court denied defendant's request for a certificate of probable cause, raised on the grounds that he was innocent of the charges and was denied his urine test results and discovery packet until after he took the plea offer.
DISCUSSION
First, defendant challenges the sufficiency of the facts underlying his no contest plea. He claims the shotgun was not loaded and he was simply defending himself; he was the victim, not the criminal; the drugs were not his; and he does not deserve this conviction on his record.
Despite defendant's claims of innocence now, he pled no contest to assault with a firearm. "A guilty [or no contest] plea admits every element of the crime and constitutes a conviction. [Citations.] For that reason, ... issues going to the determination of guilt or innocence are not cognizable on appeal; review is instead limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea." (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178; People v. Shults (1984) 151 Cal.App.3d 714, 719 ["issues which merely go to the guilt or innocence of a defendant are 'removed from consideration' by entry of the plea"].) We do not consider, for example, whether his firearm was loaded. The no contest plea disposed of this issue. We also note that the drug charges were not relevant to his plea to the assault charge, a point the judge clarified for defendant.
Defendant also argues he was pressured into accepting the plea by the prosecutor, who refused defendant access to his discovery packet and "practically brain washed him into taking the deal," and by the judge, who lied or misspoke regarding his maximum exposure. Defendant claims he could have beaten the charges if he had had his discovery packet, and he wants an opportunity to prove his innocence.
Among the issues that can be raised after a guilty plea are whether a defendant knowingly, voluntarily, and intelligently waived his or her rights in entering the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) Thus, improper plea inducement is cognizable on appeal. --------
We see nothing in the record to suggest the prosecutor pressured, much less brain washed, defendant into accepting the plea. And the trial court's explanation of defendant's possible 17-year exposure on count 3 accurately reflected what could happen if defendant withdrew his plea and the prosecution amended the charges to include an allegation of personal use of a firearm under section 12022.5, subdivision (a), which carries up to a 10-year term on its own. The court made it very clear it was trying to give defendant a possible outcome so he could make an educated choice, and was not trying to pressure him into any decision.
As for beating the charges, defendant is correct that he would not have been convicted of being under the influence of a controlled substance following the negative drug test. But the evidence was potentially sufficient to support other charges and allegations. The record establishes that defendant was well aware of his opportunity to prove his innocence at trial, but after discussion of the prospects, he very reasonably decided to forgo that opportunity and accept the offer of probation with a short jail term to avoid the risk of multiple convictions and a long prison term. For these reasons, he changed his mind about withdrawing his no contest plea. "Nothing in the record indicates [defendant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208; see People v. Hunt (1985) 174 Cal.App.3d 95, 103 ["Defendant's unwilling acceptance of his counsel's advice is not a '... factor overreaching defendant's free and clear judgment.' "].)
Having reviewed the entire record, we find no arguable errors on appeal.
DISPOSITION
The judgment is affirmed.