Opinion
F079781
06-01-2020
THE PEOPLE, Plaintiff and Respondent, v. JEFFEREY STEVEN NEDD, Defendant and Appellant.
Richard L. Fitzer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F16900769)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Richard L. Fitzer, 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., Peña, J. and De Santos, J.
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INTRODUCTION
Pursuant to a plea agreement, appellant Jefferey Steven Nedd pled no contest to a violation of Penal Code section 273.5, subdivision (a), corporal injury, and a violation of section 261, subdivision (a)(2), forcible rape. He also admitted a great bodily injury allegation pursuant to section 12022.7, subdivision (e). He was sentenced to an aggregate 12-year prison term.
References to code sections are to the Penal Code. --------
Nedd filed a timely notice of appeal and requested a certificate of probable cause, which was granted. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because Nedd pled no contest, many of the facts are taken from the probation report. Nedd had been dating the victim approximately four months when he began physically abusing her. Six incidents of domestic violence were reported to police prior to February 1, 2016.
On February 1, 2016, Nedd arrived uninvited at the victim's residence around 8:00 p.m. The two argued for a few minutes, then Nedd hit the victim in the head three times with his fist and struck her with a baseball bat on the head, neck, arm, and leg. Nedd then grabbed the victim by the hair and forced her to stand in the shower, clothed, for 10 minutes. He then shoved her into the bedroom, where he removed her clothes, and forcibly raped her for five to 10 minutes while pulling on her hair.
When Nedd was occupied cleaning some blood spatter, the victim managed to escape out the front door and ran to a neighbor's house, yelling "He's beating me." Police were called and responded at about 4:23 a.m. on February 2, 2016. The victim was taken to the hospital for treatment of her injuries and for a rape kit to be performed. The victim had a laceration on her forehead and swelling around the left eye; she could not move her left arm, which was swollen and bruised. The victim needed two staples in the back of her head and approximately 30 in her leg. She told officers that she did not want to have sex with Nedd, and she was scared.
Officers spoke with Nedd, from whom a strong odor of alcohol was emanating. Nedd claimed the victim was "crazy," setting him up, and stated, "It's not my fault." Nedd had blood on his pants legs, shoe, and coat. After Nedd was placed in a holding cell, he shouted out that he did not have sex with the victim and did not hit her. A warrant was obtained for Nedd's blood and DNA.
A first amended felony complaint charged Nedd with first degree burglary, attempted murder, corporal injury, assault with a deadly weapon, and forcible rape. Enhancements were alleged asserting that he personally inflicted great bodily injury and personally used a deadly and dangerous weapon. Nedd pled not guilty to all charges and denied all enhancements.
Nedd had been diagnosed in 2010 as suffering from post-traumatic stress disorder and schizophrenia. He previously had been prescribed Risperdal, Geodon, Seroquel, Wellbutrin, and Remeron. Nedd told the probation officer that he currently was prescribed medication while in the county jail. He claimed he attempted suicide by jumping off stairs three or four times while in the county jail in 2017.
At a March 18, 2019 change of plea hearing, Nedd entered into a plea agreement. The agreement provided that he would plead to one count of violating section 273.5, subdivision (a), corporal injury, and admit an appended section 12022.7 great bodily injury enhancement; plead to one count of violating section 261, subdivision (a)(2), forcible rape; and waive accrued time credits. In exchange, the other charges would be dismissed and Nedd would receive a stipulated 12-year term.
Prior to entering into the plea agreement, Nedd had met with his attorney to review all the evidence and consequences of a plea, including sex offender registration and the effect of pleading to strike offenses. Counsel had met with Nedd on more than one occasion to discuss possible settlement of the case. Furthermore, prior to addressing the plea agreement, or soliciting a waiver of constitutional rights on March 18, 2019, the trial court recessed to allow Nedd to consult with his attorney once again prior to entering a plea.
The trial court then proceeded to articulate the terms of the plea agreement, verify that Nedd understood the terms of the plea agreement, and understood and knowingly waived his constitutional rights. The parties stipulated to a factual basis for the plea. The trial court then asked if Nedd had sufficient time to discuss the plea with counsel, and Nedd requested to confer with counsel before entering his plea. The trial court trailed the matter for Nedd to confer with counsel, after which Nedd entered his plea.
The probation report noted several factors in aggravation, including that Nedd was on parole or probation at the time of the current offenses and had multiple prior convictions. No factors in mitigation were noted.
On July 10, 2019, Nedd was sentenced in accordance with the plea agreement to an aggregate term of 12 years in prison. Apparently, Nedd sought to set aside his plea, but at a July 10, 2019 hearing on his motion, he withdrew the motion.
On August 8, 2019, Nedd filed a timely notice of appeal and sought a certificate of probable cause, which was granted. In his request for a certificate of probable cause, Nedd claimed he lacked the capacity to understand the consequences of his plea and he did not know the status of the evidence in the case, specifically DNA evidence, before entering his plea and that if he had known his DNA was not a match, he would not have entered into the plea.
DISCUSSION
Appellate counsel submitted a letter pursuant to People v. Fares (1993) 16 Cal.App.4th 954 to the superior court, seeking a correction to the award of custody credits and an amended abstract of judgment. In response, on October 7, 2019, the superior court issued an amended abstract of judgement reflecting an award of 132 days of presentence credit.
Thereafter, on December 4, 2019, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. That same day, this court issued its letter inviting Nedd to submit supplemental briefing.
On January 7, 2020, Nedd submitted a response claiming the victim had been engaged in relationships with other men. On January 14, 2020, Nedd submitted a further response asking for appointment of new counsel because a Wende brief had been filed; claiming he did not know the consequences of his plea, specifically sex offender registration; asserting he had faced only one charge; and asserting his DNA was not a match.
This court denied Nedd's request for the appointment of new appellate counsel on January 28, 2020.
The contentions raised by Nedd are not supported by the record. Prior to the change of plea hearing, Nedd had met with counsel several times to review the state of the evidence and discuss the consequences of a plea, including sex offender registration. During the change of plea hearing, the trial court provided additional opportunities for Nedd to consult with counsel, verified that Nedd understood the consequences of his plea and had adequate opportunity to consult with counsel.
As for the claim that Nedd lacked capacity to understand the consequences of his plea, the record reflects that neither defense counsel nor the trial court ever declared a doubt as to Nedd's mental capacity to cooperate with counsel and participate in his defense. Furthermore, Nedd was rational and responded appropriately to the trial court's questions at the change of plea hearing. Granted, the record reflects Nedd had been diagnosed with mental health issues, but he had been in custody and his mental health issues were being treated appropriately prior to his change of plea.
Regarding Nedd's claim that he only faced one charge, this is not correct. The record reflects that Nedd was charged with five felony offenses and multiple enhancements. Defense counsel was able to negotiate a plea that resulted in dismissal of three of the felony charges and all but one of the enhancements.
Finally, we view Nedd's claims the victim was in relationships with other men and his challenge to the DNA, as contending there is not a factual basis for the plea. First, he stipulated to a factual basis for the plea. Second, he was at the scene of the attack on the victim when police responded; he had blood on his clothing; and he was positively identified by the victim as her attacker.
In sum, Nedd appears to be suffering from postplea apprehension or "buyer's remorse," which is not a valid basis for setting aside a plea agreement. (People v. Knight (1987) 194 Cal.App.3d 337, 344.) Furthermore, the record does not disclose any undue pressure or duress. Nedd was under no more pressure than any other defendant faced with the option of a trial or accepting a plea agreement. Feeling pressured to enter into a plea agreement does not constitute duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
After an independent review of the record, we find no reasonable, arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.