Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06907393. Arlan Harrell, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.
INTRODUCTION
Appellant, Archie Lee Woody Ricks, was charged in an information filed October 17, 2006, with corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). The information further alleged that appellant inflicted great bodily injury within the meaning of section 12022.7, subdivision (e) in the commission of the offense.
All further statutory references are to the Penal Code.
On January 4, 2007, Ricks entered into a plea agreement wherein he would admit the corporal injury allegation in exchange for dismissal of the great bodily injury allegation. A second pending criminal action would be dismissed and a third criminal action would not be filed by the prosecutor. Ricks executed a felony advisement, waiver of rights, and plea form that set forth the consequences of his plea. The form indicated the above noted agreement and that there would be a three-year lid on appellant’s prison term and other criminal actions would be dismissed or not filed.
The court advised appellant of the consequences of his plea as well as of his constitutional rights pursuant to Boykin/Tahl. Ricks expressly waived his rights in open court and acknowledged signing and initialing the felony advisement, waiver of rights form. The court also advised Ricks there was a lid of three years on his sentence and that he could withdraw his plea if he received a longer sentence. The court established a factual basis for the plea based on the stipulations of counsel and the preliminary hearing transcript.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Ricks pled no contest to the allegation. The remaining allegations and actions were dismissed. Defense counsel stated on the record that the court indicated in chambers prior to the change of plea hearing that it would strongly consider a long-term alcohol treatment program. The court noted it had an open mind on this point but wanted to first see the probation report before making a decision.
On February 14, 2007, the case was called for a hearing on the probation officer’s report. The court noted that the probation report had a statement from appellant that he wished to withdraw his plea. Appellant informed the court that he was willing to resolve the case that day by pleading the case down from a felony to a misdemeanor and for informal probation with anger management classes. The court asked Ricks whether he wanted to have an attorney investigate a motion to withdraw his plea. Ricks replied that he was “willing to stay that.”
The probation officer reported that Ricks said he planned to withdraw his plea.
The court told Ricks that he was not in a negotiation and asked if he was willing to go forward with his plea. Ricks asked the court how it would pass judgment. The court said it sounded like Ricks was attempting to negotiate. The court explained that Ricks had entered into a plea agreement and the court had indicated a sentence of three years was the maximum he would receive. The court stated Ricks indicated to the probation officer that he wanted to withdraw his plea. The court asked whether Ricks still intended to do so.
Ricks replied:
“In regards to me signing that plea agreement with that three-year lid and you going over the probation report, what you was [sic] just saying right now, my understanding was, uh, you probably would have gave [sic] me three years?”
The court observed Ricks was responding to the court’s question with his own question and that the court needed to know if Ricks wanted an attorney appointed to investigate the possibility of withdrawing his plea. The court further explained that Ricks did not have an absolute right to withdraw his plea. Ricks replied that the court advised him he had 30 days to withdraw his plea by statute. The court rejected this statement and stated that Ricks may have misunderstood. Ricks acknowledged he signed a plea agreement with a three-year lid. Ricks “was under the assumption that I would have got [sic] accepted to this here program. The program came [sic] and interviewed me a week after that court date and I was ineligible, so that was my basis for withdrawing my plea.”
Ricks appears to be referring to an interview with a representative of a treatment program. There is no reference to such a program or interview in the probation report.
The court explained to Ricks that his plea had not been withdrawn. The court said:
“My question is whether you wish to attempt to withdraw your plea. And I can tell you, sir, I am pretty sure I never told you that you could withdraw your plea within 30 days of entering it. That would not be a valid statement of the law and I make it a point to follow the law.”
Ricks replied affirmatively to the court’s comments and stated that he would like to withdraw his plea. The court appointed independent counsel solely for the purpose of investigating whether Ricks had a basis to withdraw his plea. The court found there were not “sufficient grounds for a conflict to be determined between Mr. Ricks and his attorney and the Public Defender’s office.” The court trailed the matter for one day.
On February 15, 2007, the trial court appointed independent counsel to investigate whether Ricks had grounds to withdraw his plea. On March 16, 2007, independent counsel advised the court that after reviewing the change of plea form and the transcript of the change of plea hearing, Ricks had no meritorious ground to change his plea. Without further comment, the court proceeded with sentencing. The court sentenced Ricks to prison for the midterm of three years. The court granted presentence custody credits of 220 days and a restitution fine. The court later granted Ricks’s request for a certificate of probable cause.
Ricks’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.) The opening brief also includes the declaration of appellate counsel indicating that Ricks was advised he could file his own brief with this court. By letter on July 20, 2007, we invited Ricks to submit additional briefing. To date he has not done so.
On August 16, 2007, we granted appellate counsel’s request that we take judicial notice of a minute order from the trial court correcting and increasing appellant’s total presentence credits from 220 days to 260 days.
FACTS
On September 23, 2006, Ricks’s wife, who had two children with appellant, was at home in the morning. She and Ricks were drinking and arguing. Ricks’s wife first hit him and he tried to leave the house. She testified that she could not remember whether she hit him with an object or a closed fist. She then stated she may have fallen and that she did not think appellant hit her. When shown a photograph of her taken that day, Ricks’s wife admitted her eye was swollen closed. She admitted calling the police.
Officer David Ponek of the Fresno Police Department was dispatched to appellant’s residence. Ponek described the victim as emotional, and very, very upset. Ponek explained the photograph accurately depicted the victim’s face but that she also had blood on her shirt and arms. Ponek could smell alcohol from her breath. Based on his experience, Ponek believed the victim was intoxicated. The victim’s speech was not slurred.
The victim told Ponek that she was arguing with appellant over bills, she was not happy with her marriage, she wanted to leave, and she wanted to file for a divorce. The victim told Ponek appellant came over to her and punched her right eye with a closed fist. The victim told Ponek appellant had hit her in the past. Ponek observed a lot of fresh blood on the living room carpet.
DISCUSSION
We initially note that there are no obvious or prejudicial errors in appellant’s change of plea hearing. Appellant was fully advised of the consequences of his plea and his constitutional rights in the waiver of rights and change of plea form. 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 preliminary hearing transcript. Appellant bargained for, and received, dismissal of a great bodily injury allegation as well as two other pending criminal actions. Appellant was promised, and received, a lid of three years on his sentence.
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 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.)
Appellant was appointed independent counsel to investigate whether he had a basis to withdraw his plea. The only stated reasons appellant gave to withdraw his plea were his desire for a misdemeanor rather than a felony conviction and his belief that he was entitled within 30 days to withdraw his change of plea. 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].)
Appellant never complained about the quality of his counsel’s representation. Appellant’s counsel never indicated to the court that appellant complained about his representation. We therefore find this case distinguishable from our recent opinion in People v. Eastman (2007) 146 Cal.App.4th 688, 695-699 (Eastman), in which we found error when the trial court failed to conduct a proper hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) where the defendant made numerous complaints concerning his counsel’s representation, including a written motion detailing counsel’s alleged shortcomings.
Related to appellant’s desire for a misdemeanor rather than a felony sentence was his statement to the court that he was rejected for a program. Appellant did not specify the nature of the program. The probation report does not refer to this program and does not reference any interview of the appellant.
It is doubtful appellant had a colorable basis to withdraw his plea. Even if we assume arguendo that he made a colorable claim to have independent counsel investigate a motion to withdraw the plea, that claim was based on either: (1) his mistaken belief that he was entitled to withdraw his plea for any reason within 30 days, and/or (2) his wish to be sentenced for a misdemeanor rather than a felony.
Factually, neither one of appellant’s claims is supported in the record as an example of appellant being misled concerning the consequences of his plea. Substitute counsel indicated on the record that he reviewed the advisement and waiver of rights form as well as the transcript from the change of plea hearing, and determined there was no meritorious basis for appellant to withdraw his plea. Based on appellant’s stated assertions for withdrawing his plea at the January 14, 2007, hearing and our own independent review of record, we agree with substitute counsel’s evaluation that there was no basis for appellant to withdraw his plea.
Because substitute counsel did not make a motion to withdraw the appellant’s plea, there was no pending motion upon which the trial court could rule. Appellant did not object to this procedure. Even if the trial court should have made an independent finding that there was no basis for appellant to withdraw his plea, such a finding was implied from the court’s conduct. (See People v. Maury (2003) 30 Cal.4th 342, 406.) Furthermore, even if the court should have made a ruling on whether appellant had a basis to withdraw his plea, appellant’s failure to press for a ruling constitutes an implied waiver, or forfeiture, of the issue on appeal. (People v. Pinholster (1992) 1 Cal.4th 865-931.)
Based on this record, appellant was not entitled to a Marsden hearing or to substitute counsel to withdraw his plea. Appellant received more review of his case from independent counsel than he was entitled to receive. For that reason, the errors, if any, by the trial court in the procedures employed in appointing substitute counsel were harmless beyond a reasonable doubt. The only remaining proceeding was sentencing. Appellant received the three-year lid to which he agreed pursuant to the terms of the plea agreement and the recommendation of the probation report. Appellant did not object to any statement or representation in the probation report and he did not object to the probation officer’s recommendation that he be sentenced to the three-year lid.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.
“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, as here, a defendant fails to make such a showing, the trial court does not need to replace defendant’s counsel. (See, id. at p. 1026.)