Opinion
A119412
4-29-2008
THE PEOPLE, Plaintiff and Respondent, v. JESSICA SOBEL, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellant appeals from the sentence imposed upon her and the validity of a no contest plea she had earlier entered to one count of first degree residential burglary and one count of making terrorist threats. (Pen. Code, §§ 459, 422.) She asks us to examine the record in the trial court and determine if there are any issues deserving of further briefing and, then, consideration by us. We have done so, find none, and hence affirms the orders appealed from.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
The first charges against appellant were contained in an August 4, 2006, complaint filed in Napa County Superior Court and involving, among other alleged victims, appellants two-year old child. Criminal proceedings were suspended a few days later and a section 1368 report ordered to be prepared.
On August 28, 2006, the court held a hearing to consider both the section 1368 report it had received and a Marsden motion filed by appellant. After denying the latter, the court found appellant to be, then, incompetent to stand trial. After receipt of a further report regarding placement of appellant, on September 13, 2006, the court, after first denying another Marsden motion, committed her to Patton State Hospital.
On January 3, 2007, the court received a report from that hospital stating that appellant had "been restored to competency" and indicating that she could be returned to court to stand trial. The court so ordered on January 16. On January 25, a third Marsden motion was denied by the court and a preliminary hearing set for the following day. After that hearing, appellant was held to answer on all five counts in the complaint.
All remaining dates noted are in 2007.
On January 29, an information was filed charging appellant with the two counts to which she ultimately pled no contest, plus five others: false imprisonment by violence (§ 236), attempted child stealing (§§ 664 & 278), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), misdemeanor battery (§ 242), and misdemeanor disobedience of a court order. (§ 166, subd. (a)(4).)
On February 28, the trial court denied a section 995 motion filed by appellant with regard to four of the counts, and this court denied a petition for a writ of prohibition on March 20. In the meantime, appellants counsel sought and obtained a continuance of the trial date from April 9 to June 25.
On April 27, the prosecution moved to advance the trial date because of the anticipated absence of a key witness, one of the alleged victims. Appellants counsel, then the Napa Public Defenders office, opposed the motion but, on May 11, private counsel was substituted to represent appellant and the prosecutions motion to advance set to be heard on May 15.
On that day, the court granted the prosecutions motion to advance, and the case was set for trial one week earlier, i.e., on June 18. The court later denied a defense motion for a continuance.
On June 15, appellant changed her pleas to no contest to the two counts noted above; all remaining charges were dismissed with a Harvey waiver. At the same time, she filled out a written plea waiver form and entered a no contest plea to one count of violating a stay-away order in another, misdemeanor, case. A sentencing hearing was set for August 10.
People v. Harvey (1979) 25 Cal.3d 754.
On July 30, appellants (now private) counsel filed a motion to continue the sentencing hearing and, also, for that counsel to be compensated by Napa County. The latter motion was denied on August 22. The motion to continue was initially denied, but then granted by the judge assigned to conduct the sentencing hearing.
On September 19, appellant moved pursuant to section 1018 to withdraw her plea on the ground that appellant had not understood the consequences of her plea and had been under medication at that hearing. The motion was opposed by the prosecution.
A hearing on that motion, and also on a new motion by appellant for a continuance, was held on October 3. The court denied both of appellants motions and a motion by the prosecution to consider additional written material regarding the sentencing issue. It did, however, grant appellants motion to consider a letter to the court from her step-mother. Following argument, the court denied probation, and imposed the midterm of four years on the residential burglary count and a concurrent midterm of two years on the terrorist threat count. It also ordered the routine restitution and parole revocation fines, and granted appellant a total of 642 days of custody credits.
On October 10, appellant filed a timely notice of appeal. In it, she challenged both the sentences imposed on her and the validity of the pleas she entered on June 15. On October 16, the trial court granted appellants request for a certificate of probable cause.
III. DISCUSSION
Appellant was represented by counsel throughout the proceedings in the lower court. In the beginning, it was a deputy public defender from Napa County. Effective May 11, as noted above, appellant opted to substitute in her own private counsel. That counsel represented her—and quite ably per our review of the reporters transcripts of subsequent hearings—through and including the filing of appellants notice of appeal on October 10. Those proceedings specifically included the June 15 hearing at which the plea agreement was presented to and approved by the court and the October 3 hearing at which the motion to withdraw her pleas was heard and sentence imposed.
At the earlier hearing, when the plea agreement was announced and formalized, appellant was voir dired by that counsel regarding her understanding of the agreement. She specifically answered that counsels questions regarding the medication she had taken that day and in the preceding weeks, and confirmed that she was able to understand what was happening in court.
Following that voir dire, the court then summarized the sentence appellant was possibly facing, and then confirmed that she had read, signed, and initialed the "plea form," and had no further questions regarding it or the future procedure to be followed by the court. She then entered the pleas noted above. Our review of the reporters transcript of this hearing confirms that appellants responses to the questions of both her counsel and the court seemed clear and unconfused. The trial court also confirmed that, after appellant made a personal statement that she "didnt do some of the things that Im charged with," she was then referring to the counts that had been dismissed.
Apparently the day of the October 3 sentencing hearing, appellant moved to continue that hearing based on an alleged head injury she had suffered at an unidentified point in time while in county jail. At the hearing, the prosecution opposed the motion on the basis that there was no supporting medical evidence submitted; the court denied the continuance motion on that ground.
The hearing then turned to appellants September 19 motion to withdraw her plea, a motion based largely on a declaration—with substantial pharmaceutical-related attachments—regarding the medications appellant was taking at and prior to the June 15 entry of her plea. The argument presented by appellants counsel and testified to by appellant at the October hearing was that, in essence, she had been confused and unable to realize what was happening at the June 15 hearing. More specifically, her brief testimony and her counsels argument was to the effect that the combination of two drugs she was taking at the time of the earlier hearing caused this "confusion" and "extreme anxiety."
In the course of this argument, the court observed that it did not "remember seeing these symptoms" at the earlier hearing. And the prosecution, in the course of reiterating its opposition to the motion to withdraw the plea, pointed out that appellant had not supplied the court with any declarations from medical experts that there was any harm in taking the two medications simultaneously or regarding appellants condition at the time of the June 15 hearing.
The trial court agreed with this latter argument, noting that appellant had "not carried her burden of proof" on the subject of her medical condition at the time of the June 15 plea agreement hearing. The court had reviewed the transcript of that hearing, and noted: "[F]rom reading the entire transcript, it appeared that she did know what she was doing on that day, whether she was on medication or not . . . ."
The prison terms to which appellant was sentenced were both concurrent and midterm. More importantly, the four-year term was the "lid" term encompassed by the plea agreement approved by the court on June 15 and to which appellant personally agreed. Although the trial court did indicate, at that hearing, that it would prefer to sentence appellant to a "locked facility" in which she could get "mental health treatment," it did not abuse its discretion in imposing the midterm sentence it did on October 3. In so doing, it first found appellant ineligible for probation because of the presumption against such a sentence in a case involving first degree residential burglary. (See §§ 459 & 462 and Cal. Rules of Court, rule 4.414.) Regarding the issue of imprisonment versus confinement of appellant in a "lock-down facility," the trial court clearly relied upon a very thorough probation department report which described the "dispositional possibilities" for appellant as "extremely challenging." That report concluded that appellants recent "dangerous conduct" directed toward several people, including her mother and two-year-old daughter, rendered her "a very high risk to the community" and, therefore, the "only safe and viable option is a prison commitment."
We have reviewed the record, particularly regarding the entry of the plea, the courts denial of the motion to withdraw that plea, and the sentence imposed, and find no issues deserving of further briefing.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur:
Kline, P.J.
Richman, J.