Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Stanislaus County, No. 1083857, Scott T. Steffen, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
STATEMENT OF THE CASE
Information
On April 8, 2005, appellant, Marcos Antonio Rodriguez, was charged in an information with five counts of attempted murder (Pen. Code, §§ 664, 187, counts 1 through 5), five counts of assault with a deadly weapon likely to cause great bodily injury (§ 245, subd. (a)(1), counts 6 through 10), five counts of driving under the influence and causing great bodily injury (Veh. Code, § 23153, subd. (a), counts 11 through 15), and one count of feloniously acting on behalf of a criminal street gang (§ 186.22, subd. (a), count 16). The information also alleged gang enhancements (§ 186.22, subd. (b)(1)), great bodily injury enhancements (§ 12022.7, subd. (a)), and enhancements for proximately causing bodily injury to more than one victim (Veh. Code, § 23558).
Unless otherwise indicated, all statutory references are to the Penal Code.
Appellant’s preliminary hearing was conducted on March 24, 2005.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On September 9, 2005, appellant filed a Marsden motion. Appellant alleged his counsel, Greg Spiering (Spiering), had conflicts with appellant, did not adequately represent appellant, failed to confer or communicate with appellant, failed to present an affirmative defense at appellant’s preliminary hearing, failed to file motions critical to appellant’s defense, failed to declare a conflict of interest with appellant, and failed to provide appellant with a proper defense guaranteed by the Sixth Amendment.
The trial court conducted an in camera Marsden hearing on September 14, 2005. The court read through appellant’s allegations and then asked appellant for specific examples of how Spiering was not adequately representing appellant. Appellant replied he thought Spiering might be tired because he was not doing anything, not talking to appellant, and had not gotten appellant released.
In response to a question from the court, Spiering explained he had been licensed to practice law in California since 1983, worked in the public defender’s officer for 15 years, worked as a criminal defense attorney in private practice, and had been a certified criminal law specialist for 6 or 7 years. Spiering tried over 100 cases, including death penalty cases, 10 homicide cases, and mental health cases. Spiering explained appellant’s case was originally assigned to Ms. Maurice who did an initial investigation but became injured. Spiering represented appellant at the preliminary hearing. Spiering received a number of documents concerning appellant’s mental health history and met with him a couple of times, including the day before the Marsden hearing.
Spiering did not feel ready to try appellant’s case because of appellant’s potential mental health issues. Spiering explained that he communicated with appellant. Spiering rarely prepared an affirmative defense at a preliminary hearing because he considered that to be a poor strategy. During the preliminary hearing, Spiering probed witnesses on cross-examination to explore possible affirmative defenses or self-defense. Spiering was planning to retain expert witnesses for appellant. Spiering explained there were no appropriate pretrial motions to file and a suppression motion seemed inappropriate. Spiering thought the testimony at the preliminary hearing was adequate to withstand a challenge under section 995.
Spiering described his relationship with appellant as respectful. Appellant had nothing to add to Spiering’s comments. The court found Spiering was properly representing appellant and there was no deterioration of the attorney-client relationship. The court denied the Marsden motion.
Appellant waived his speedy trial rights and the case was continued several times from November 2005 until November 2007. Beginning on April 4, 2006, appellant was represented by attorney Michael Sheid.
Psychological Evaluation
In July 2005, appellant was evaluated by Dr. Gary Zimmerman, a clinical psychologist. Dr. Zimmerman reported that appellant was not taking medication for any condition and had no head trauma or injuries. Appellant admitted using marijuana, methamphetamine, and alcohol. Appellant suffered hallucinations in 2003 as the result of drug use. Appellant presented no delusional material to Dr. Zimmerman. Appellant finished classes through the eleventh grade and is working on his GED. Appellant was able to name his counsel and outline the respective roles of the prosecutor, defense attorney, judge, and jury.
Dr. Zimmerman found appellant was able to understand the nature of the proceedings against him and rationally assist his counsel in conducting a defense. Dr. Zimmerman did not believe appellant needed a referral for psychiatric treatment and that treatment with antipsychotic medication was not applicable to appellant. Dr. Zimmerman found appellant did not appear to be a danger to himself.
Plea Agreement
On November 16, 2007, appellant entered into a plea agreement, agreeing to admit the first four attempted homicide counts in exchange for a stipulated sentence of 14 years and the dismissal of the remaining allegations. The court called a brief recess for appellant to discuss with Scheid the consequences of admitting counts that would later count as strike allegations under the three strikes law. The court reviewed the consequences of the plea with appellant.
As a factual basis for the plea, the prosecutor stated that on November 8, 2004, appellant was driving a car in Stanislaus County when he saw Javier Morfin, Martin Morfin, Miguel Lopez, and Jaime Gomez with whom appellant had an earlier confrontation. Appellant purposely drove his car at the four men, revving his engine, and hitting all four men with his car with malice aforethought and intent to kill them all. The prosecutor noted there had been a preliminary hearing. Defense counsel Sheid stipulated to the prosecutor’s statement and the reports of the sheriff’s department as a factual basis for appellant’s plea.
Appellant stated he had enough time to discuss his change of plea with his attorney. The court established that no one had threatened appellant, appellant had discussed the consequences of his plea with counsel, appellant understood the charges against him, and appellant was entering his plea freely and voluntarily. The court advised appellant of, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. Appellant pled no contest to counts 1 through 4. The court granted the prosecutor’s motion to dismiss the remaining allegations against appellant.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Motion to Withdraw Plea and Sentencing
On December 7, 2007, appellant’s counsel indicated that appellant sought to withdraw his plea. Counsel thought appellant should accept the plea bargain. The court appointed independent counsel to investigate whether appellant had grounds to withdraw his plea.
Appellant’s new counsel was Larry Cole. On April 2, 2008, Cole filed points and authorities and a declaration on appellant’s motion to withdraw his plea. Cole stated appellant’s grounds to withdraw his plea were that he believes he was innocent of the allegations he admitted, he was confused at the time he entered his pleas, and facts and statements to law enforcement surrounding his arrest should have been challenged with a suppression motion.
Cole filed a declaration stating he had discussed the facts and circumstances of his case with appellant and counseled appellant concerning the consequences of withdrawing his plea and being tried on all of the allegations. Cole stated that throughout his discussions, appellant consistently maintained his innocence concerning any intent to kill and explained he was motivated by fear for his safety during the incident.
Cole examined the extensive discovery in the case, the preliminary hearing transcript, and the police reports. Appellant had a blood alcohol reading of.13 percent. Cole thought it appeared possible a motion to suppress his confession due to intoxication impacting his ability to understand his Miranda rights could have favorably impacted his defense. Cole stated it was possible appellant’s intoxication may have presented grounds for a jury to conclude appellant lacked the mental capacity to form the specific intent necessary for attempted murder.
Miranda v. Arizona (1966) 384 U.S. 436.
On April 9, 2008, Cole submitted the motion on his moving papers. Cole further stated that coupled with the issue of diminished capacity from intoxication not being discussed with the appellant, appellant had some difficulty understanding things and was confused when he entered his plea. The prosecutor stated that Scheid was present to testify should the court have further questions concerning appellant’s plea.
The court noted that regarding the plea itself, the court observed appellant a number of times. The court went through the change of plea transcript and the court noted it read “the script” and appellant gave the answers one would anticipate. The court noted it made sure appellant understood each of the questions the court asked and the court watched appellant. The court did not find that appellant failed to understand anything stated to him. The court noted it gave appellant time to think about his responses to the court’s questions.
Scheid represented he did not recall what he told appellant concerning potential defenses. Scheid did recall the court gave appellant extra time to consider the change of plea. The court noted that although appellant’s blood alcohol was.13 at the time of the incident, appellant surely was not intoxicated when he changed his plea. The court asked Scheid if he discussed the diminished capacity defense with appellant. Scheid replied that he had done so. Scheid had also retained a psychologist to assist in presenting a diminished capacity defense. Scheid explained that if they had proceeded to trial, appellant’s primary defense would have been his lack of intent with the goal of bringing the charges down to the lesser included offense of assault.
Scheid recalled the defense had a problem with the additional allegations of gang and great bodily injury enhancements, which Scheid described as “pretty solid enhancements.” The court offered to place Scheid under oath, but Cole replied he did not think that was necessary. Cole did not want to cross-examine Scheid. The court accepted Scheid’s representations as an officer of the court. Scheid stated that had he been sworn prior to making his statements and testified as a witness, he would have said the things he stated to the court without any material changes or additions.
The parties submitted the matter. The court found no showing sufficient for appellant to withdraw his plea based on anything that occurred at the time appellant entered his change of plea. The court found that appellant bore the burden of proof by clear and convincing evidence and his showing was well short of that standard. The court found Scheid explored the possibility of a diminished capacity defense with appellant and denied his motion to withdraw his plea.
The court sentenced appellant on count 1 to the midterm of seven years. The court sentenced appellant to consecutive terms of two years, four months on counts 2, 3, and 4, for a total prison term of fourteen years. On April 11, 2008, there was a brief hearing in which the court stated that appellant’s custody credits totaled 1,438 days.
Petition of Habeas Corpus
On December 30, 2008, appellant filed a petition of habeas corpus to file a belated notice of appeal. On April 17, 2009, this court issued its opinion in Case No. F056735 granting appellant leave to file a late notice of appeal with the Clerk of Stanislaus County Superior Court within 30 days from the filing of our opinion. On April 29, 2009, appellant filed his notice of appeal, which included a certificate of probable cause.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on November 2, 2009, we invited appellant to submit additional briefing.
Appellant replied with a letter contending he received no benefit from his plea bargain because he was not charged with enhancements; he was entitled to a Marsden motion under this court’s decision in Eastman; his trial counsel was ineffective for failing to present affirmative defenses and failing to secure expert witnesses; counsel advised appellant to “give up;” defense counsel refused to declare prejudice against appellant, taking the role of surrogate prosecutor; and he believes he acted in self-defense.
People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman).
Appellant’s argument that he received no benefit from the plea bargain is not supported by the record. The information alleged great bodily injury in counts 1, 2, and 3, and gang enhancements in counts 1, 2, 3, and 4. There was also a fifth victim named in the complaint. Count 5 alleged an additional count of attempted murder and a gang enhancement. In addition to count 5 being dismissed, 11 other counts with enhancements were dismissed. Appellant undoubtedly received the benefit of a much reduced sentence from his plea bargain.
Appellant argues he was entitled to a Marsden hearing under this court’s holding in Eastman. The defendant in Eastman entered into a plea agreement. At the sentencing hearing, the defendant offered a letter from his mother explaining that the prosecutor and defense counsel, Mr. Garcia, conspired to persuade the defendant to accept a plea bargain of ten years. (Eastman, supra, 146 Cal.App.4th at p. 691.) The trial court appointed an independent attorney to investigate appellant’s grounds for withdrawing his plea. The first attorney appointed to investigate appellant’s claims declared a conflict and was substituted by a new attorney. (Id. at p. 692.)
At the continued sentencing hearing in Eastman, the new attorney explained he had reviewed the file, read hearing transcripts, and interviewed the defendant but found no basis to file a motion for appellant to withdraw his plea and was not doing so. (Eastman, supra, 146 Cal.App.4th at pp. 692-693.) Garcia was reassigned to the case. Prior to sentencing, the defendant handed the court a letter detailing complaints he had concerning the quality of Garcia’s representation before and during the change of plea hearing that challenged the adequacy of Garcia’s representation of the defendant. (Id. at pp. 693-694.)
We held in Eastman that appellant’s written letter to the court was effectively a request for a Marsden hearing and that failure to hold such a hearing was error. (Eastman, supra, 146 Cal.App.4th at pp. 695-697.) We further held that the trial court could not abandon its own statutory and constitutional obligations to make the ultimate determination of whether there were sufficient grounds for appellant to withdraw his plea by delegating that task to the attorney appointed to file such a motion. (Id. at p. 697.)
Here, appellant was appointed independent counsel to investigate the basis for a motion for appellant to withdraw his plea. Counsel filed the motion and it was denied. Unlike the defendant in Eastman, appellant did not challenge the quality of his legal representation by Scheid before or during the change of plea hearing. Appellant’s case bears no resemblance to Eastman and its inapposite to the facts of this case.
Eastman did criticize the practice of the trial court there of appointing separate counsel to investigate a potential motion to withdraw a plea while leaving the original attorney as counsel of record. (Eastman, supra, 146 Cal.App.4th at pp. 697-698.) Although this procedure was employed here, it resulted in no prejudice to appellant because he still received the legal services of an attorney who ultimately filed a motion for appellant to withdraw his plea. The trial court found that appellant failed to meet his burden in the motion to withdraw his plea. We agree with the trial court’s ruling. Appellant’s motion to withdraw his plea was filled with speculation concerning potential affirmative defenses but set forth no evidence that appellant’s plea was coerced or that his plea was not knowing and intelligent.
Appellant next sets forth a litany of allegations challenging the effectiveness of Scheid’s representation. In doing so, however, appellant presents no factual basis for his allegations. Indeed, during appellant’s motion to withdraw his plea, Scheid represented to the trial court that he obtained an expert witness in preparation of a diminished capacity defense. The one fact in the record that supports ineffective representation by counsel was the failure to file a timely notice of appeal. This deficiency, however, caused appellant no prejudice because our court permitted a belated notice of appeal to be filed and appellant has been represented by appointed appellate counsel. We find no factual basis supporting appellant’s claim of ineffective assistance of trial counsel.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Finally, appellant asserts he was acting in self-defense and argues the factual merits of a potential affirmative defense. 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.) In accepting the plea bargain, appellant was admitting the allegations against him as well as conceding there were no viable affirmative defenses. Appellant received the benefit of his plea bargain, which was honored by the prosecutor and the trial court.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.