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People v. Olhoft

Court of Appeals of California, Fourth District, Division One.
Nov 3, 2003
No. D042094 (Cal. Ct. App. Nov. 3, 2003)

Opinion

D042094.

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. DEBRA OLHOFT, Defendant and Appellant.


Debra Olhoft pleaded guilty to possessing cocaine base for sale (Health & Saf. Code, § 11351.5), possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and petty theft with a prior (Pen. Code, §§ 484, 666) and admitted serving a prior prison term (§ 667.5, subd. (b)). The court sentenced her to serve seven years in prison.

All further statutory references are to the Penal Code unless otherwise indicated.

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues whether: (1) there was sufficient evidence to support a conviction on the charge of possession of cocaine base for sale; and (2) the trial court abused its discretion by denying probation and imposing the middle term on the charge of possessing cocaine base for sale.

A party who enters a guilty plea cannot challenge the facts underlying his or her conviction without a certificate of probable cause. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) Because Olhoft did not seek nor receive a certificate of probable cause, we need not recite the facts.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Olhoft on this appeal.

We granted Olhoft permission to file a brief on her own behalf. She has responded and raises three issues. She asserts: (1) she received ineffective assistance of counsel; (2) her plea was not voluntary as it was made under duress and out of fear; (3) and she did not receive the sentence to which she agreed under the plea bargain.

1

Olhoft asserts she received ineffective assistance of counsel because her attorney advised her to plead guilty to the entirety of the information even though she did not believe she was guilty. When a defendant makes an ineffectiveness of counsel claim on appeal, we examine the record for any explanation for the challenged aspects of the representation. (People v. Babbitt (1988) 45 Cal.3d 660, 707.) If the record does not show the reason counsel acted or did not act in the manner challenged, "`unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation]," the judgment is affirmed. (Ibid.) In such cases, the ineffective assistance of counsel claim is more appropriately made in a petition for habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

Here, the record does not explain why counsel advised Olhoft to accept the plea. However, it is likely counsel did so because the evidence of guilt was overwhelming. A security officer saw Olhoft place a knife set in her bag and exit the store without paying for the knife set. After she was arrested, police officers found rock cocaine, wire cutters, and glass smoking pipes in her purse. The amount of rock cocaine totaled 4.23 grams, consisting of 15 large pieces, five smaller size pieces, and crumbs. An expert testified that a person who had that much rock cocaine possessed it to sell it. He believed a person who possessed rock cocaine for personal use typically had less than one-quarter of a gram.

In any event, there is no explanation from counsel why he advised Olhoft to take the plea. There is also no evidence in this record that counsel was asked for an explanation and failed to provide one. Consequently, Olhofts ineffective assistance of counsel claim is more properly raised in a petition for a writ of habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)

2

Olhoft asserts the plea was not valid because she was under duress and was afraid at the time she entered her plea. However, when a defendant pleads guilty, he or she may not appeal from the conviction unless he or she has received a certificate of probable cause. (§ 1237.5, subd. (b).) The only exceptions to this rule occur when the defendant seeks to challenge search and seizure issues under section 1538.5 or issues regarding proceedings subsequent to the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 74.)

Here, Olhoft pleaded guilty but did not seek or receive a certificate of probable cause. She has not sought to challenge search and seizure issues or, other than the sentencing issue addressed below, post-plea issues. Accordingly, the validity of the plea cannot be reviewed on appeal.

Even if the plea could be reviewed on appeal, a review of the record reveals no evidence that Olhoft was under duress or was afraid when she took the plea. The court informed Olhoft of all her rights at the change of plea hearing and she acknowledged she understood them. She stated she had adequate time to discuss the matter with her counsel including alternatives such as going to trial. She never indicated she was frightened or took the plea under duress. The record does not demonstrate Olhoft entered the plea under duress or out of fear.

3

Olhoft argues the judgment should be reversed because she believed she would receive a maximum sentence of four years under the plea agreement. However, the record shows there was no agreement as to sentence. The court told Olhoft it would decide the appropriate sentence, and the maximum possible term was nine years eight months. It also told her that because of her prior prison term, the court could enhance her sentence by three years. The plea form, which Olhoft initialed, states that she had not been induced to enter a plea by any promises or representations. The form does not show the district attorney agreed to a sentence. Because the record does not show there was an agreement that Olhoft would receive a four-year sentence, her belief provides no basis to reverse the judgment.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J. and McDONALD, J.


Summaries of

People v. Olhoft

Court of Appeals of California, Fourth District, Division One.
Nov 3, 2003
No. D042094 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Olhoft

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEBRA OLHOFT, Defendant and…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 3, 2003

Citations

No. D042094 (Cal. Ct. App. Nov. 3, 2003)