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People v. Novela

California Court of Appeals, Fifth District
Mar 21, 2008
No. F052923 (Cal. Ct. App. Mar. 21, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. OMAR LINARES NOVELA, Defendant and Appellant. F052923 California Court of Appeal, Fifth District March 21, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County. Wayne Ellison and W. Kent Hamlin, Judges. Super. Ct. No. F07901904

Judge Ellison presided over appellant’s change of plea hearing and appellant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Judge Hamlin sentenced appellant.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

THE COURT

Before Levy, Acting P.J., Cornell, J., and Dawson, J.

FACTS AND PROCEEDINGS

Appellant, Omar Linares Novela, was charged in a criminal complaint filed March 8, 2007, with possession for sale of methamphetamine (Health & Saf. Code, § 11378, count one) and possession of methamphetamine (Health & Saf. Code, § 11378, count two). An enhancement alleged that Novela had prior narcotics convictions in 1993, 2000, and 2004 (Health & Saf. Code, § 11370.2. subd. (c)). A prior prison term enhancement was also alleged. (Pen. Code, § 667.5, subd. (b)).

Unless otherwise specified, all further statutory references are to the Penal Code.

On March 14, 2007, Novela entered into a plea agreement in which he would admit count one and the prior drug conviction enhancement for a stipulated term of five years. In exchange for Novela’s plea, the remaining allegations and an action against his wife would be dismissed. The court advised Novela of his constitutional rights and explained to Novela that he was facing a stipulated prison sentence of five years. Novela waived his constitutional rights pursuant to Boykin/Tahl.

Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

The court explained to Novela the consequences of his plea, including the fact that if he is not a citizen, he could be deported or denied naturalization, that a guilty plea could constitute a violation of probation or parole, and the fact that he would have to pay a fine. The court further informed Novela he had no possibility of probation and he faced “48 months on parole with a return to prison for one year for every parole violation.”

In addition to the trial court’s advisements, Novela executed a felony advisement, waiver of rights, and plea form that set forth the basic terms of the plea agreement. It also included a description of Novela’s constitutional rights and set forth the consequences of his plea. The trial court obtained the stipulation of Novela and his attorney that the police reports constituted a factual basis for the plea. Novela pled no contest to count one and admitted the prior drug conviction enhancement.

Novela entered his plea prior to a preliminary hearing. According to the probation report, at 9:45 p.m. on March 6, 2007, Fresno police officers observed Novela standing in the middle of the road. When the officers approached him and shined a light on him, Novela reached into his waistband to retrieve something. Novela then threw a small, white item on the ground and proceeded to walk away. The officers retrieved the object which was identified as a plastic bag containing crystal methamphetamine. When officers tried to detain Novela, he walked toward a woman, Novela’s wife, and handed her an item. She tucked it into her waistband. Officers retrieved the item which was another bag of methamphetamine. Novela consented to a search of his nearby car. In the trunk, officers found a digital scale, 87 empty baggies, and a red, cut straw used to measure narcotics. The methamphetamine in the baggies weighed 12.2 grams.

The court explained to Novela that a plea of no contest had the same legal effect as a plea of guilty.

At the time originally set for sentencing on April 11, 2007, Novela’s counsel, Serita Rios, explained that Novela was asserting ineffective assistance of counsel because Novela asserted Rios did not have time to talk to him. The trial court noted that if Novela had a colorable claim, the court would continue the matter and appoint other counsel. The court stated that it would not assume a colorable claim of ineffective assistance of counsel explaining to Novela that he could not create a conflict by making an assertion.

Rios told the court that she did not believe her client had demonstrated a colorable claim of ineffective assistance of counsel. The court explained to Novela that he had a right to be sentenced that day and Rios would remain on the case to help Novela prepare a motion to withdraw his plea. Novela agreed to a continuance of the proceedings. Before the end of the hearing, Novela asked the court if he was going to get another lawyer. The court explained that Novela had to have a basis to get a different attorney and a change was not automatic.

On May 3, 2007, Judge Ellison heard Novela’s Marsden motion. Novela submitted an unsigned motion under an alias, Omar Puga. In a closed hearing, the court had Novela present his Marsden motion. Novela replied his counsel did nothing and his cases were dismissed. Novela complained about being charged twice. This apparently had to do with the prior drug conviction enhancement. The court stated it did not understand what Novela was saying. Novela said he needed an interpreter.

Marsden, supra, 2 Cal.3d 118.

The unsigned motion stated Novela did not understand English well enough at the change of plea hearing and that his change of plea was involuntary because he was told his wife would be prosecuted if he failed to plead guilty. In the unsigned motion, Novela stated his attorney did not explain the potential sentence, the minimum, or the maximum sentence to him. Novela said his counsel failed to address potential meritorious Fourth Amendment claims and any affirmative defense. An unsigned declaration stated that Novela: had a very “limited command” of English, did not understand the judge’s admonishments during the change of plea hearings, answered yes to his understanding of the admonitions out of fear and coercion, his wife was a codefendant and would not be prosecuted if he pled guilty, he was not told the elements of the offense or affirmative defenses, counsel failed to pursue a meritorious Fourth Amendment claim, and Novela was not guilty of the offense and wished to withdraw his plea.

Novela agreed to have the matter set over. The court ordered an interpreter for the next hearing.

On May 10, 2007, Novela renewed his Marsden motion with the assistance of a court interpreter. The court initially noted that it received a packet of documents, some typewritten, others handwritten and all were written in English. Novela told the court someone else wrote the documents for him. Novela acknowledged he did not sign the documents. The court informed Novela he was not entitled to the court appointed attorney of his choice. To obtain new counsel, Novela would have to show that Rios had not acted competently in some way.

Novela stated that Rios had not explained anything to him. When the court asked if Rios had a language problem with Novela, Novela replied, “No” and explained that Rios had not talked to him about his case. Novela stated that Rios had not defended him in any way. When asked for specific examples, Novela said he asked Rios to fight his case and she said no. Novela said he did not understand what was happening.

Rios stated she met with Novela the day after she was assigned his case. There was originally an offer from the prosecutor of eight years as well as a separate plea agreement with Novela’s wife, who is a codefendant. Rios said she explained the offer to Novela. They discussed “fighting his case.” Rios also discussed filing a suppression motion, but Novela kept talking about his wife getting out. Rios explained she made it very clear to Novela that he had to choose a deal where his wife would get out or they could fight his case, but he could not do both. Novela reiterated to Rios that he wanted to get his wife out.

The bargain offered by the prosecutor was a “package deal.” Rios approached the prosecutor three times that first morning. She negotiated an offer of five years for Novela and a complete dismissal of the allegations against Novela’s wife. The prosecutor said the offer was good only for that day, which Rios acknowledged had to place Novela under pressure. When Rios visited Novela in jail, Novela told her he felt pressured to enter the plea bargain because his wife was crying. Novela was undecided about filing a suppression motion the first day Rios was assigned to the case.

Rios gave Novela time to consider the offer. Novela decided to accept the plea bargain. He told Rios he did not want to fight his case. Rios explained to Novela that if he accepted the bargain, his wife would be released. Rios went over the plea form in detail with Novela, as she does with all of her clients. Novela seemed to understand everything fine. Despite a strong accent and a stutter, Rios understood Novela.

When the court inquired of Rios whether Novela asked her for an interpreter, Rios explained that she asked Novela right away if he needed an interpreter. Novela replied no and told Rios he did not need an interpreter. Rios observed Novela talking to his wife in English. Rios saw Novela speak to other attorneys in English. Rios spoke to Novela in English at the jail.

Novela changed his plea and his wife was released from custody that day. Prior to the April 11, 2007 hearing, Novela told Rios he wanted to take his plea back and wanted to fight his case. Rios went to speak to him at the jail. Novela told her he felt pressured to enter into the plea agreement. Novela said nothing at that time about a language barrier.

Novela challenged the truth of Rios’s statements. When the court asked if Novela was saying he did not understand what was happening because of a language problem, Novela replied, “[t]hat’s it.” Novela said he did not know what was going on. Novela told the court he did not understand the felony advisement, waiver of rights, and plea form. When asked if he read English, Novela replied he did not understand everything.

Novela reiterated his assertion that he felt pressured to enter into the plea agreement to get his wife out of custody. Novela asked the court to have compassion for him and to give him another opportunity. The court found Novela had failed to state any ground for the appointment of a new attorney. The court found that nothing Novela described suggested to the court that Rios acted ineffectively in any way in her representation of Novela. The court found it is clear now that because his wife was out of custody, Novela wanted to change his mind. The court denied Novela’s Marsden motion.

On May 11, 2007, the trial court sentenced Novela to the midterm of two years on count one plus three years for the enhancement, for a total prison term of five years. Novela told the court his sentence was too much time and that he did not want the plea agreement. The court imposed a restitution fine and granted applicable custody credits.

Novela’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating that Novela was advised he could file his own brief with this court. By letter dated October 1, 2007, we invited Novela to submit additional briefing.

Novela responded with an “amicus curiae” brief filed on October 16, 2007, in which he contends: the trial court erred in failing to grant his motion to withdraw his plea; the trial court failed to inform him of a parole eligibility, a direct consequence of his plea; the court did not inform Novela of the minimum time to be served, another direct consequence of his plea; his plea was coerced; the court’s sentence violates Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham); and the court improperly used the fact of his prior conviction to impose the upper term.

In Novela’s letter to this court, and in earlier correspondence, Novela states that he has not received copies of the record. Appellate counsel sent a letter dated March 6, 2008, confirming that he has twice sent Novela copies of the record.

MARSDEN HEARING

The issues of trial counsel’s competency and Novela’s understanding of English were raised by Novela in the context of a Marsden hearing. The trial court conducted a Marsden hearing in which Novela was permitted to explain his grievances with his trial counsel. Trial counsel explained in detail the factual basis for her belief that Novela understood English. Counsel’s belief was based on multiple encounters and conversations with Novela, conversations counsel observed between Novela and other attorneys, and a conversation Novela had with his wife. Counsel also explained in detail the circumstances surrounding the plea bargain accepted by Novela. Contrary to Novela’s contention on appeal, counsel told the court during the Marsden hearing that she discussed with appellant the possibility of challenging his case through a suppression motion and a trial. Counsel further told the trial court that she explained to Novela the consequences of a plea bargain.

The judge that heard the Marsden motion was the same judge who took Novela’s plea and conducted the hearings up to and including the Marsden motion.

In conducting the Marsden hearing, the trial court was able to hear the basis for Novela’s complaints about his trial counsel. In denying Novela’s motion to substitute his counsel, the court necessarily rejected the factual basis for Novela’s contentions. When there is question of credibility between defendant and counsel at the hearing, the court is allowed to accept counsel’s explanation. (People v. Smith (1993) 6 Cal.4th 684, 696.) To the extent that Novela’s depiction of events conflicted with trial counsel’s description of what happened, the trial court was entitled to accept trial counsel’s explanation.

“A trial court should grant a defendant’s Marsden motion only when the defendant has made ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation’ (People v. Crandell (1988) 46 Cal.3d 833, 859), or stated slightly differently, ‘if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result’ (People v. Smith [1993] 6 Cal.4th [684,] 696).” (People v. Hines (1997) 15 Cal.4th 997, 1025-1026.) Where a defendant fails to make such a showing, the trial court does not need to replace defendant’s counsel. (See, id. at p. 1026.)

To be entitled to independent counsel to investigate grounds to withdraw from a plea agreement, a defendant has to first make a colorable claim that he or she has a basis to withdraw a guilty plea. (People v. Osorio (1987) 194 Cal.App.3d 183, 188-189; People v. Brown (1986) 179 Cal.App.3d 207, 216 [motion cannot be frivolous].) The colorable grounds to bring such a motion here were Novela’s contention that he was coerced and did not understand English. These contentions were reviewed and rejected by the trial court when it denied Novela’s Marsden motion.

Given the fact that the trial court found trial counsel’s explanation of events more credible, Novela has failed to make the requisite showing that counsel was ineffective or that there was a breakdown in the attorney/client relationship. We cannot reverse the trial court if there is substantial evidence or reasonable inferences to be drawn from it which supports the trial court’s order. (People v. Knight (1987) 194 Cal.App.3d 337, 344 (Knight).)

MOTION TO WITHDRAW PLEA

Concerning Novela’s motion to withdraw his plea, we initially note that he failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)

Novela argues that the trial court erred in failing to grant his motion to withdraw his plea. Although Novela does not state a legal basis to do so in his letter to this court, he filed a motion to withdraw his plea with the trial court. Novela, however, never signed the motion and, despite multiple opportunities, failed to seek a ruling from the trial court on the motion. Novela’s failure to seek a ruling on his written motion to withdraw his plea constitutes an implied waiver, or forfeiture, of the issue on appeal. (See People v. Pinholster (1992) 1 Cal.4th 865, 931.)

Even if we could reach the merits of Novela’s other contentions, there were no errors in Novela’s change of plea hearing. Novela was fully advised of the consequences of his plea and his constitutional rights. He was further advised of and waived his constitutional rights in open court. The parties stipulated to a factual basis for the plea based on the police reports. Novela bargained for, and received, dismissal of one count, a prior prison term enhancement, and the entire criminal action pending against his wife.

Related to Novela’s assertion that the trial court erred in denying his motion to withdraw his plea are his contentions that he was not advised of the parole consequences of his plea or of the minimum sentence he could received. Contrary to Novela’s contention in his letter brief, he was advised of the parole consequences of his plea both in open court and in the plea form he executed. The court expressly informed Novela he had no possibility of probation and he faced “48 months on parole with a return to prison for one year for every parole violation.”

Novela was promised, and received, a stipulated term of five years. Because he received a stipulated term, the court’s failure to advise Novela of the minimum sentence he faced was necessarily harmless. Novela had rejected an earlier offer from the prosecutor of a longer prison term of eight years and suggested a package deal in which the allegations against his wife would be dismissed. Furthermore, Novela has not demonstrated that he would not have entered into the agreement had the court added this advisement. Accordingly, he has failed to show prejudice. (People v. Walker (1991) 54 Cal.3d 1013, 1023, 1025; People v. Victorian (1992) 2 Cal.App.4th 954, 958.)

Generally, the burden of proof necessary to establish good cause in a motion to withdraw a guilty plea is by clear and convincing evidence. Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion is not disturbed on appeal absent a showing the court has abused its discretion. To establish good cause, the defendant must show he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. Other factors overcoming a defendant’s free judgment include inadvertence, fraud or duress. A plea may not be withdrawn simply because the defendant has changed his or her mind. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.)

ALLEGED COERCION

Novela contends he was coerced into accepting the plea. We note that a key component of his plea bargain was to have the case against his wife dismissed, which happened. Novela’s trial counsel gave him time to consider the offer and reviewed Novela’s legal alternatives with him. After time to reflect, and after having the consequences of his plea and legal alternatives explained to him, Novela chose to accept the prosecutor’s offer. According to Novela’s trial counsel, he negotiated the very term in his plea agreement which he now argues was coercive. It appears that Novela seeks to withdraw his plea simply because he has changed his mind.

Post-plea apprehension, or buyer’s remorse, regarding the anticipated sentence, even when it occurs well before sentencing, is insufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty. (Knight, supra, 194 Cal.App.3d at p. 344.) Where two conflicting inferences may be drawn from the evidence, it is the reviewing court’s duty to adopt the one supporting the challenged order. The reviewing court cannot reverse the trial court if there is substantial evidence or reasonable inferences to be drawn from it which support the order. (Ibid.)

ALLEGED CUNNINGHAM ERROR

Novela was not sentenced to an upper term sentence on count one or on the enhancement, so his contention concerning Cunningham is meritless. The court’s imposition of an enhancement based on a prior drug offense conviction did not violate the prohibition of a dual use of facts in sentencing.

Furthermore, even had there been sentencing error, where a defendant has pled guilty in return for a specified sentence, courts will not find error even when the trial court has acted in excess of jurisdiction in reaching that sentence, as long as the trial court did not lack fundamental jurisdiction. Defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to improve the bargain through the appellate process. (People v. Hester (2000) 22 Cal.4th 290, 295.)

CONCLUSION

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Novela

California Court of Appeals, Fifth District
Mar 21, 2008
No. F052923 (Cal. Ct. App. Mar. 21, 2008)
Case details for

People v. Novela

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OMAR LINARES NOVELA, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Mar 21, 2008

Citations

No. F052923 (Cal. Ct. App. Mar. 21, 2008)