Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD220566, Michael T. Smyth, Theodore M. Weathers, Judges, and a petition for writ of habeas corpus.
IRION, J.
Ruben Lopez Pacheco pled guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and was sentenced to four years in prison. Before us is an appeal from the judgment as well as Pacheco's petition for habeas corpus. We affirm the judgment and deny Pacheco's habeas petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
Pacheco was charged with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) with the further allegation that he incurred two prison priors (Pen. Code, §§ 667.5, subd. (b), 668) and two prior strikes (id., §§ 667, subds. (b)-(i), 668, 1170.12).
At arraignment, Pacheco pled not guilty and denied the special allegations, and the public defender's office was appointed to represent him. On July 27, 2009, Pacheco withdrew his not guilty plea and entered into a negotiated settlement, in which he pled guilty to possession of a controlled substance and admitted one of the prior strikes. As shown on the guilty plea form signed by Pacheco and as discussed in court during the plea, Pacheco pled guilty with the understanding that if he was admitted to the Delancey Street program by the time of sentencing, the trial court would consider dismissing his prior strike to allow him to enroll in that program, but otherwise he would be sentenced to four years in prison. Specifically, the trial court and Pacheco had the following exchange during the hearing on the guilty plea:
"[The Court]: My understanding of your agreement with the prosecution is that if you end up getting accepted into the Delancey Street program by the time of your sentencing, I'm going to consider your request to dismiss your strike priors to allow you to be able to be enrolled in that program. If that doesn't happen, you're agreeing to serve the four years in state prison. Is that your understanding of your deal?
"[Pacheco]: Yes, Sir.
"[The Court]: Now, you understand that even if you're accepted into Delancey Street, that doesn't necessarily mean that I'll strike the strikes. I'm going to look at everything presented to see if I think it's appropriate. Do you understand that?
Similarly, the guilty plea form signed by Pacheco stated, "Judge to consider strike/strikes if [defendant] enrolled in Delancey Street - if not[, ] stipulated 4 years."
The sentencing hearing was originally set for September 15, 2009, but was then continued to October 15, 2009, to allow time for Pacheco to obtain an interview with the Delancey Street program, and was again continued to November 23, 2009 for the same reason.
At the November 23, 2009 hearing, Pacheco represented to the trial court that he had been interviewed by the Delancey Street program but had not been accepted due to lack of bed space.
Pacheco indicated during the November 23, 2009 hearing that he wanted to bring a motion to withdraw his guilty plea. Pacheco had also filed a handwritten motion on November 19, 2009, titled "Motion: Renegotiate Plea[;] Ineffective Assistance of Counsel." The trial court appointed the alternate public defender to represent Pacheco in connection with the motion to withdraw his guilty plea and set a hearing for January 19, 2010, which was later continued to March 15, 2010. In a pleading filed in connection with that hearing, the alternate public defender pointed out that a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) was required before new counsel could be appointed to handle the motion to withdraw the plea. On March 19, 2010, the trial court held a Marsden hearing and concluded that there was no basis for relieving the public defender.
The trial court then considered Pacheco's motion to withdraw his guilty plea, which Pacheco stated was based on his belief that he should be considered for other treatment programs in addition to the Delancey Street program before being sentenced to prison. The trial court denied the motion to withdraw the plea and then sentenced Pacheco to four years in prison.
Pacheco filed a notice of appeal, acting in propria persona, in which he complained of the denial of his motion to withdraw his guilty plea, ineffective assistance of counsel and unfairness in having his motion to withdraw the guilty plea and his sentencing handled by a different trial court judge. Along with his notice of appeal, Pacheco filed a request for a certificate of probable cause, which was denied by the trial court. Appellate Defenders, Inc. filed an amended notice of appeal for Pacheco based on "the sentence or other matters that occurred after the plea and do not affect its validity." Pacheco's trial counsel also filed a notice of appeal on Pacheco's behalf along with another request for a certificate of probable cause, which the trial court also rejected.
The March 15 and March 19, 2010 hearings were presided over by Judge Theodore M. Weathers rather than the Judge Michael T. Smyth, who had presided over the case since Pacheco entered a guilty plea in July 2009.
On July 23, 2010, appellate counsel filed a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). On July 23, 2010 we granted Pacheco permission to file a supplemental brief on his own behalf within 30 days, with an extension to September 22, 2010, but he did not do so. On September 27, 2010, Pacheco filed a petition for a writ of habeas corpus. We requested that the Attorney General provide an informal response to the habeas petition, and we ordered that the habeas petition be considered at the same time as the pending appeal. An order consolidating the matters is filed concurrently with this opinion.
II
DISCUSSION
A. Pacheco's Habeas Petition
We first address the issues presented in Pacheco's habeas petition.
"When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief - that is, whether it states facts that, if true, entitle the petitioner to relief - and also whether the stated claims are for any reason procedurally barred." (People v. Romero (1994) 8 Cal.4th 728, 737.) "To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition, and '[i]f the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.'... The petition should both (i) state fully and with particularity the facts on which relief is sought..., as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.... 'Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.' " (People v. Duvall (1995) 9 Cal.4th 464, 474, citations omitted.) "If no prima facie case for relief is stated, the court will summarily deny the petition." (Ibid.)
1. Pacheco's Claim of Ineffective Assistance of Counsel
As a first ground for habeas relief, Pacheco contends that trial counsel offered ineffective assistance.
To prevail on an ineffective assistance of counsel claim, a defendant must show trial counsel's performance was deficient under an objective standard of reasonableness, and that there is a reasonable probability that but for counsel's errors he would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As particularly relevant here, "in order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
Pacheco contends that defense counsel provided ineffective assistance in several instances.
First, Pacheco contends that defense counsel used "coercion" to get him to plead guilty by representing to him that the trial court judge "wanted to send [Pacheco] to a drug program." Pacheco fails to support this argument because he has submitted no evidence of coercion by defense counsel. Further, if, as Pacheco appears to argue, the coercion consisted of defense counsel telling him that the trial court wanted him to enroll in the Delancey Street program, we do not view such a statement as coercive. Instead, it is a truthful statement, which is borne out by the record. As the trial court explained to Pacheco, he believed that the Delancey Street program was "a real good program" and he would "welcome that" if Pacheco was able to get into the program. Indeed, demonstrating that the trial court wanted Pacheco to enter the Delancey Street program, the trial court twice continued Pacheco's sentencing to allow Pacheco to obtain an interview.
Second, Pacheco contends that defense counsel was ineffective by allegedly lying during the October 15, 2009 hearing when explaining to the trial court why Pacheco had not yet been interviewed by the Delancey Street program. Defense counsel explained to the trial court that when he inquired with Delancey Street personnel why Pacheco had not yet been interviewed, he was told that "because of his classification they can't get down there to the jail to interview him at all." During the October 15, 2009 hearing, the bailiff made calls to the jail to try to get some clarification on the issue, but the phone calls were not productive. However, the bailiff stated on the record that based on his knowledge of Pacheco's classification code, Pacheco should not have been precluded from obtaining an interview. These facts do not establish ineffective assistance by defense counsel. There is no evidence that defense counsel was untruthful about what Delancey Street personnel told him. Further, even if defense counsel was untruthful, it caused no prejudice to Pacheco. The trial court continued the sentencing hearing from October 15, 2009 to November 23, 2009, and in the interim, Pacheco obtained an interview with the Delancey Street program.
Third, Pacheco contends that defense counsel offered ineffective assistance by stating in a September 23, 2009 e mail to Pacheco that he would call the Delancey Street program "to check on the status, " but it was "completely out of my control" whether the program interviewed Pacheco. According to Pacheco, this e mail shows that defense counsel was "not responsibly advocating the minimal amount to enroll" Pacheco in the Delancey Street program. We reject this argument. Defense counsel's e mail and statements at the October 15, 2009 hearing show that he was taking all the steps within his power with regard to the Delancey Street program, which were to call the program to check on Pacheco's status and to advocate to the trial court that the sentencing hearing be continued to allow Pacheco to obtain an interview. Pacheco does not identify any other steps that defense counsel could have taken on his behalf with respect to the Delancey Street program.
Fourth, Pacheco contends that because the trial court had previously appointed Appellate Defenders, Inc. to represent Pacheco, defense counsel offered ineffective assistance by appearing on Pacheco's behalf at the March 19, 2010 hearing on the motion to withdraw the guilty plea and sentencing. However, as the trial court correctly recognized after initially intending to appoint Appellate Defenders, Inc., it was required to hold a hearing under Marsden, supra, 2 Cal.3d 118, before relieving defense counsel. Indeed, our Supreme Court in People v. Smith (1993) 6 Cal.4th 684 (Smith) held that when the defendant requests to bring a motion to withdraw a plea and alleges ineffective assistance of counsel, "substitute counsel should be appointed, when, and only when, necessary under the Marsden standard, " and "new counsel should not be appointed without a proper showing." (Id. at p. 696.) Thus, the trial court properly held a Marsden hearing rather than going forward with its original intention of appointing Appellate Defenders, Inc. Because the trial court decided at the Marsden hearing that there were no grounds to relieve defense counsel, it was proper for defense counsel to appear on Pacheco's behalf at the March 19, 2010 motion to withdraw the guilty plea and sentencing.
2. Pacheco'sClaim That the Trial Court Abused Its Discretion on March 19, 2010
Pacheco's argument is not clear, but he appears to contend that the trial court abused its discretion (1) by having Judge Weathers rather than Judge Smyth handle the March 19, 2010 sentencing hearing; and (2) by allowing defense counsel to represent Pacheco at that hearing rather than Appellate Defenders, Inc.
With respect to the presence of Judge Weathers instead of Judge Smyth at the March 19, 2010 sentencing hearing, Pacheco is barred from raising that issue due to his agreement, as part of this guilty plea, to waive any rights under People v. Arbuckle (1978) 22 Cal.3d 749 to have the judge who accepted the guilty plea also be the judge presiding over his sentencing.
Concerning the fact that defense counsel rather than Appellate Defenders, Inc. represented Pacheco at the March 19, 2010 hearing, we have explained above why that situation was proper under Smith, supra, 6 Cal.4th 684, and Marsden, supra, 2 Cal.3d 118.
3. Pacheco's Claim That the Trial Court Miscalculated His Presentence Custody and Conduct Credits
Finally, Pacheco contends that the abstract of judgment should reflect 318 days of actual custody credits and 318 days of conduct credits, rather than the 259 days of actual custody credits and 128 days of conduct credits that he received. The basis for Pacheco's claim is not completely clear, but he appears to rely on two contentions.
First, he appears to be claiming that he should have obtained custody and conduct credits for the entire time that he was incarcerated awaiting disposition and sentencing in his drug possession case. However, as the record reflects, some of that time was served in state prison due to a parole violation that did not stem solely from the drug possession charge. Pursuant to People v. Bruner (1995) 9 Cal.4th 1178, 1191, the trial court properly declined to include those days of incarceration when calculating Pacheco's presentence credits.
Specifically, when Pacheco was arrested for the drug possession offense, a felony parole warrant was already outstanding against him due to the parole violation of absconding from parole.
Second, Pacheco appears to contend that, under Penal Code section 4019, he should receive additional conduct credits. However, Pacheco does not explain the basis for this contention. We note that Pacheco attaches as an exhibit to his habeas petition a July 9, 2010 order by the trial court denying a motion that Pacheco filed seeking modification of his presentence credits. As is the case with Pacheco's argument in this court, the basis for Pacheco's motion for modification of credits in the trial court is not clear. Pacheco has not provided us with a copy of his moving papers in the trial court. Significantly, however, in ruling on Pacheco's motion, the trial court considered the issue of Pacheco's custody credits, and found that Pacheco was not entitled to additional credits. Pacheco has presented no reason for us to question the trial court's conclusion. We therefore conclude that Pacheco has failed to establish a prima facie case that he is entitled to relief.
B. The Appeal
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel refers to as possible, but not arguable, issues whether: (1) Pacheco's waiver of the right to appeal was valid; (2) the trial court abused its discretion in denying the motion to withdraw the guilty plea; (3) the trial court abused its discretion in refusing to issue a certificate of probable cause; (4) Pacheco's guilty plea was constitutionally valid; (5) Pacheco's presentence credits were correctly calculated; (6) Pacheco should have been sentenced by the judge who took the guilty plea; (7) the trial court erred in denying the Marsden motion; (8) the trial court erred in not appointing Appellate Defenders, Inc. to represent Pacheco in the motion to withdraw the guilty plea; and (9) defense counsel was ineffective.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders supra, 386 U.S. 738, including the possible, but not arguable, issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Pacheco has been adequately represented on this appeal.
DISPOSITION
The judgment is affirmed. The petition is denied.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.