Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Super. Ct. No. 2006045258, Bruce A. Clark, Judge
Greg May, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant was charged by information with street terrorism (count 1; Pen. Code, § 186.22, subd. (a)) and second degree robbery (count 2; § 211). It was alleged that he committed the robbery for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Appellant pleaded not guilty and denied the special allegation.
All further statutory references are to the Penal Code unless otherwise stated.
Prior to trial, appellant withdrew his not guilty plea and entered into a plea agreement. He pleaded guilty to count 2 and admitted the gang enhancement allegation. In exchange, count 1 was dismissed and the court struck the gang enhancement. The trial court denied probation and sentenced appellant to the low term of two years in state prison. We dismiss the appeal.
FACTS
Police officer Ramiro Holguin testified that he was called to the scene of a robbery on November 30, 2006. The victim, Eugenio Lopez, told Holguin that he was sitting in his parked car when he was approached by appellant and another person.
Appellant tapped on the driver's side window and Lopez opened the door. He asked for a ride and for help jump-starting his stalled car. Lopez refused.
Appellant demanded money from Lopez, who again refused. Appellant punched Lopez twice in the face and kicked him in the face and head. He grabbed Lopez's arm, reached into his right front pants pocket, and retrieved three dollars, then walked away. Two witnesses saw appellant make a stabbing motion towards appellant with what appeared to be a screwdriver. One witness told officer Holguin that, before walking away, appellant said, "I'll be back tonight," and gestured as if he were pulling the trigger of a gun. Lopez and both witnesses later identified appellant as the robber.
DISCUSSION
Appellant requests that we remand the matter and order a hearing at which he may be allowed to move to withdraw his guilty plea. He does not specify the grounds for his request. As a separate issue, appellant claims he was denied the effective assistance of counsel because his lawyer argued against his wish to withdraw his guilty plea. Appellant asserts that he was not required to obtain a certificate of probable cause for this appeal because he is not challenging the validity of the guilty plea, but of proceedings occurring after entry of his plea. In a letter dated October 8, 2008, appellant's counsel notified this court that appellant had been released on parole.
Change of Plea
At the preliminary hearing, the court heard the testimony of officer Holguin. At the close of his examination, defense counsel informed the court that appellant wished to withdraw his not guilty plea and enter into a plea agreement that had been previously offered to him. The prosecutor asked appellant whether he had reviewed the plea form with his attorney and initialed the spaces marked. Defense counsel indicated that appellant refused to sign one space on the form. A discussion was held off the record, and the preliminary hearing was continued until the afternoon. When the court reconvened, there was no further discussion about the plea agreement. The court found probable cause that appellant had committed the charged offenses and held him to answer.
At a hearing on October 22, 2007, appellant again indicated that he wished to withdraw his not guilty plea and enter into a plea agreement. He confirmed that he had signed the felony disposition statement and initialed the form. The prosecutor stated that appellant could receive a maximum state prison sentence of 15 years, followed by a maximum parole period of three years. Appellant indicated that he understood. The prosecutor confirmed that appellant understood the consequences of his plea, including the fact that he was giving up his right to appeal. Defense counsel noted that appellant had been in custody for 11 months and inquired whether the court would consider a grant of probation. The court denied the request.
Request to Withdraw Guilty Plea
On November 7, 2007, the public defender declared a conflict. The court appointed Conflict Defense Associates (attorney Joel Steinfeld) who indicated that appellant wished to withdraw his guilty plea. The court stated that he would obtain a probation report prior to the sentencing hearing. At the sentencing hearing, Steinfeld stated that "[appellant] is indicating to me – it's against my strongest advice – that he wants a chance on probation." The court referred the matter to probation for terms and conditions, and continued the hearing. At the next sentencing hearing, Steinfeld indicated that appellant still wished to withdraw his guilty plea. Counsel stated that there were no legal grounds for appellant's request.
Steinfeld argued that it was not in appellant's best interest for the court to grant him probation because he had a substantial juvenile record and had not been successful on probation in the past. Counsel indicated that, if the court sentenced him to the low term of two years, he would have approximately seven months to serve based on his actual credits, then he would be released on parole. Were appellant to perform unsuccessfully on probation, he would face a 15-year prison sentence. Thus, counsel contended, the risk of probation was too great and it was in appellant's best interest to serve a two-year prison sentence.
Appellant addressed the court directly, stating that he had never discussed the matter with his attorney and did not wish Steinfeld to represent him. The court stated that there were no unusual factors justifying a grant of probation. It denied appellant's request and sentenced him to state prison for two years.
Appellant again asked to be permitted to withdraw his guilty plea. The court denied his request and indicated there were no grounds upon which to base his request. Appellant asked, "[e]ven if [Steinfeld] was speaking on my behalf without me even knowing what he was going to say?" The court repeated that there were no grounds for the withdrawal of appellant's guilty plea, and the court had never informed him otherwise. Appellant again asked whether counsel could speak on his behalf and the court responded, "That's what lawyers do. Next case."
Certificate of Probable Cause
Section 1237.5, subdivision (a) provides that a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere unless he or she has filed a statement with the trial court "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and has obtained a certificate of probable cause for the appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.) If, however, the appeal is based solely upon grounds occurring after entry of the plea which do not challenge its validity, a certificate of probable cause is not required. (Cal. Rules of Court, rule 8.304(b)(4)(B); People v. Cuevas (2008) 44 Cal.4th 374, 379.)
Appellant did not apply for a certificate of probable cause. Had he done so, there would have been no basis for its issuance because he has not identified any post- plea error. The only event that occurred after he entered into the plea agreement is that he changed his mind. Appellant is therefore bound by the waiver of the right to appeal, to which he agreed in the felony disposition statement.
Ineffective Assistance of Counsel
There is no merit to appellant's claim of the ineffective assistance of counsel. Steinfeld acted in appellant's best interests for the reasons he stated to the trial court. Contrary to appellant's allegations, Steinfeld acted to protect him from the possibly severe consequences of his request. Appellant was not prejudiced by Steinfeld's argument against a grant of probation, because the court made a finding that he was statutorily ineligible. Appellant has not demonstrated that Steinfeld's performance fell below an objective standard of reasonableness or that he was prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
The appeal is dismissed.
We concur: YEGAN, Acting P.J., PERREN, J.