Opinion
B164559.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD PEREZ MARTINEZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Edward Perez Martinez appeals from judgment entered following his no contest plea to one count of assault upon a peace officer (Pen. Code, § 245, subd. (c)) and his admission that he had one prior serious felony conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667.5, subds. (b)-(i), 1170.12, subds. (a)-(d)) and within the meaning of Penal Code section 667, subdivision (a)(1). Sentenced to a total term of 11 years in state prison, he contends the judgment of guilt should be reversed because the trial court erroneously denied his motion to withdraw his no-contest plea.[]
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 9, 2002, at approximately 6:00 p.m., South Gate Police Officers Garcia and Levesque were on patrol in their marked patrol vehicle and observed appellants vehicle swerve several times in the area of Tweedy and Jackson in South Gate. Believing appellant was under the influence of alcohol, Officer Garcia turned on the overhead lights on the patrol vehicle and maneuvered behind appellants vehicle. Appellant failed to stop for several red lights, made an unsafe lane change and bumped into the center median. Other police vehicles joined the pursuit and appellant continued driving, requiring the officers to take evasive action with their vehicles in order to avoid being struck by appellants vehicle. The pursuit ended after approximately one hour.
On September 3, 2002, appellant filed a motion to withdraw his plea asserting, in relevant part, he had been denied a proper preliminary hearing in that he had been in a hospital bed in the courtroom under heavy sedation due to pain and had not been aware of what was going on in the courtroom. He claimed he had been under the influence of drugs known as Darveset, Prozac, and an anti-seizure medication as a result of being shot in the head by South Gate police officers when the subject pursuit ended. Appellant also asserted that the preliminary hearing transcript clearly showed that no crime of assault on a peace officer occurred on February 9, 2002. Additionally, appellant claimed that when he entered his plea he was still suffering from the shock of being shot in the head and was under the influence of drugs, which did not allow him to make a knowing, intelligent and voluntary waiver of his rights.
At the hearing on the motion to withdraw his plea, appellant testified his "mental state" at the preliminary hearing was "zero." He had "65 staples in [his] head" and had been given medication at four oclock that morning and was in pain. He told his attorney he did not understand what was going on at the preliminary hearing, which his lawyer related to the court; and the court responded there was nothing wrong with appellants hearing and could they "go on?" Appellant asserted the pain in his head was blurring his vision, that "it was about three times worse than a migraine." He had so much pain, he asked if they could stop the hearing. When the court stated it was only going to take about 10 or 15 more minutes, appellant suggested he be "adjust[ed]" since he was chained down to a gurney. Appellant asserted during the hearing on the motion he had very loud ringing in his left ear that was very uncomfortable, and the shaking he was having was involuntary and an indication that his medication had worn off.
Appellant testified he never privately discussed the merits of his case with defense counsel and felt pressured to take the plea bargain.
DISCUSSION
Appellant contends pursuant to the provisions of Penal Code section 1192.7, subdivision (a) the trial court had no jurisdiction to accept his plea bargain and it must be set aside. Penal Code section 1192.7, subdivision (a) provides in pertinent part: "Plea bargaining in any case in which the indictment or information charges any serious felony . . . is prohibited, unless there is insufficient evidence to prove the Peoples case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." Serious felony as used in that section means, inter alia, "(31) . . . assault on a peace officer or firefighter in violation of [Penal Code] Section 245."
Appellants claim the court erred in refusing to set aside his plea based on the provisions of Penal Code section 1192.7 is without merit. "`A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when "To hold otherwise would permit the parties to trifle with the courts." [Citation.] Since section 1192.7 was not intended for the defendants benefit, no public policy precludes estopping the defendant from using that section as a shield after consenting to the acceptance of a plea bargain. For these reasons a defendant who enters into a plea bargain is estopped from later attacking his conviction on the ground that it violated section 1192.7." (People v. Webb (1986) 186 Cal.App.3d 401, 412.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, Acting P.J. CURRY, J. --------------- Notes: The trial court executed and filed a certificate of probable cause for this appeal.