Opinion
A132534
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. BILLY DALE SPEAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR-576613)
I. INTRODUCTION
Pursuant to a plea agreement, appellant was convicted of one count of a felony violation of Penal Code section 289, subdivision (a)(1) (sexual penetration by force) and sentenced to the low term of three years in state prison. Pursuant to People v. Wende (1979) 25 Cal.3d 436, he asks this court to determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the judgment of the trial court.
All statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Shortly after 5 p.m. on the afternoon of January 17, 2010, Officer Amanda Donahue of the Santa Rosa Police Department was on patrol in the area of West Third Street and North Dutton Avenue in Santa Rosa, when she received a report from a man at that intersection that "a woman was almost raped over there," pointing across that intersection. Shortly thereafter, Officer Donahue made contact with the victim, who "was visibly shaking and sobbing." She told the officer that "[s]ome guy just tried to rape me," and described him and his dress and the direction in which he had left the scene. Officer Donahue stopped appellant and asked him "if he had just been involved in an altercation with a female," to which appellant responded "[n]o," but then started talking rapidly and incoherently. The officer detained appellant "pending further investigation."
The victim was then taken to the spot appellant was being detained, and immediately identified him "definitely" as the person who had molested her a short time before. The victim stated that she had been walking home from a grocery store, talking with a friend on her cell phone. She saw appellant apparently following her, and said to the friend that "[s]ome weird guy is following me." At the intersection in question, appellant grabbed the victim from behind and tried to pull down her pants, and began to grope her vaginal area and buttocks and rub her hips. He then pushed two fingers "past her vaginal lips" through the outside of her clothing before the victim was able to break away from appellant's grasp. She was able to break free from appellant and get across West Third Street. She was soon picked up by a friend she had called on her cell phone. (She had not been able to get through to 911.)
As noted, appellant initially denied approaching or molesting appellant, but then began speaking incoherently. At a subsequent interview at the police station, when appellant was asked if he understood why he had been arrested, he answered that "it was a result of 'playing grab ass,' " and added that he "just came to Santa Rosa for pussy." He then basically agreed with the victim's account of the assault, and said to Officer Donahue that "he wanted to have sex with her," i.e., the officer.
A few days later, i.e., on January 21, 2010, appellant was charged by complaint with misdemeanor sexual battery under section 243.4, subdivision (c)(1). At the time of his arraignment, he was referred for a mental health evaluation pursuant to section 1368. The evaluation concluded that appellant was competent to stand trial.
On March 2, 2010, an amended complaint was filed. It changed the first count to a felony charge of violating section 243.4, subdivision (a), and added a second count, charging sexual penetration by force in violation of section 289, subdivision (a)(1) (section 289(a)). A preliminary hearing was held on the complaint on March 11, 2010, and appellant was bound over on the two charges.
On March 24, 2010, an information was filed in which the section 289(a) charge became the first count and the second count, the misdemeanor charge, was now brought under section 243.4, subdivision (e)(1).
On April 30, 2010, criminal proceedings were suspended and appellant again referred for a section 1368 evaluation. After several evaluations and a contested competency hearing, appellant was found mentally incompetent and, on August 12, 2010, committed to Napa State Hospital.
On January 13, 2011, the trial court received that hospital's "certification of the mental competence" of appellant and scheduled a hearing on that issue for January 25, 2011. As a result of that hearing, appellant was deemed competent and the criminal proceedings were thus reinstated.
On March 16, 2011, appellant filled out and signed a plea agreement via which he pled no contest to the first count of the information, i.e., the section 289(a) count. That document called for the imposition of the low term of three (3) years. At the hearing on the change of plea issue on that day, appellant entered a no contest plea to the charge under section 289(a), after having very specifically confirmed to the trial court that he had discussed the matter with his counsel, understood the charges against him, had signed the plea form, and had no further questions for the court. Defense counsel stated that appellant wished to accept the three-year low term rather than run "the risk of a possible eight-year sentence if he were convicted." When asked by the court if he was "in agreement with that statement" appellant said "yes," and then added: "I would just like to plead no contest."
On April 15, 2011, consistent with the no contest plea agreement, appellant was sentenced to three (3) years in state prison. Before so ruling, at the commencement of the hearing, the court said that it had "some reservations about following this agreement"
(clearly referring to the low term aspect of it). The prosecutor, perhaps in an attempt to mollify the court, noted that given "the scheme of 289s, this would not be as egregious as others that the People have seen."
Later, when pronouncing sentence, the trial court stated that it thought "the mid term would be in the best interest of justice."
Appellant's counsel, a deputy public defender, while noting that she did not agree with the plea agreement (apparently because of the "very brief physical contact through clothing"), argued that the low term sentence could be justified also by various of the factors noted in the relevant California Rule of Court on sentencing.
Apparently, appellant's counsel had tried to convince the prosecution to change the charge to "felony sexual battery" under section 243.4.
After that discussion, appellant himself then stated that if the court did not "feel it's fair, then maybe I should just go ahead and go for a jury trial . . . ." He continued: I admitted guilt, but I really—it's really marginal. You know, I admitted contact, but I really—I really don't feel there was penetration."
In any event, the agreed-to three-year sentence was imposed by the court, and appellant was awarded a total of 504 days of pre-sentence custody credits. Appellant was ordered to register as a sex offender pursuant to section 290. Another pending case, apparently involving a misdemeanor, was dismissed.
Misstated by the trial court as totaling 554 days.
On April 20, appellant's counsel filed a request for a hearing regarding a possible motion by appellant to withdraw his plea.
At a hearing before the court on May 2, 2011, appellant's counsel stated that she thought if given the opportunity, appellant might wish the court to "hear his grounds for a new trial. [¶] And from what I can tell, it appears that a Marsden motion would be the appropriate avenue that would trigger." But, when offered the chance to address the issue of "the performance of your attorney in this case," appellant specifically declined to do so or indicate that he wanted to withdraw his plea. Instead, he stated to the court that he had been a "caregiver for a quadriplegic" and he did not "know Jane Doe, but I carried her across the road. [¶] That's about all I want to say. I didn't feel it was a felony."
The trial court then stated: "There's nothing before the Court including the fact there is no motion to withdraw a plea. [¶] Based upon the defendant's indication to the Court, I don't detect anything within our conversation that would require the Court to conduct a Marsden hearing" or to have a hearing regarding a motion to withdraw appellant's plea. It then ordered that the sentence previously imposed "be carried out forthwith" and issued a formal order requiring appellant to be transferred to the Department of Corrections.
On or about June 27, 2011, appellant transmitted a handwritten note to the Sonoma County Superior Court (from San Quentin prison) asking for the proper forms to use in filing an appeal. In it, he wrote that he had taken "a plea bargain when my original charge was 243.5 six months [and the] district attorney picked up my charges an[d] I would greatly appreciate your help with form."
That note was deemed a notice of appeal by the trial court clerk's office. The Wende brief on behalf of appellant followed.
III. DISCUSSION
Especially in view of the repeated opportunities given appellant by the trial court—at three separate hearings (March 16, April 15, and May 2, 2011)—to advise it that he wanted to rescind the plea agreement (via which he received the low term sentence), appellant never made such a request, nor suggested that he wanted his counsel to move to withdraw the plea agreement. And, of course, no such motion was made by appellant personally, as clearly his only objection to the entire proceeding was that he had just "carried [the victim] across the road," had made no "penetration" of her, and thus had not committed a felony.
Probation was unavailable to appellant pursuant to section 1203.065, subdivision (a.)
--------
In his Wende brief, and pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appellant's appellate counsel seems to raise the question of whether, under section 1018, there is an "appealable order" here. We conclude that we do not need to answer that question, because the judgment of conviction and the sentence imposed was and is clearly appealable, and appellant's handwritten June 27, 2011, note may and should be accepted (as it was by the trial court) as a sufficient notice of appeal.
We also conclude, regarding another Anders notation in appellant's Wende brief, that appellant's trial counsel's "failure to pursue a motion to withdraw the plea" does not waive appellate review of any aspect of the judgment, including the sentence imposed by the court nor raise any issues of the adequacy of the representation appellant received from his trial counsel at the hearings summarized above.
Especially bearing in mind (1) the trial court's position that a midterm sentence would have been more appropriate, (2) appellant's oft-reiterated acceptance of the plea bargain negotiated by his counsel, and (3) appellant's specific refusal to state that he wanted to withdraw his plea, we see no Anders issue here. Put another way, appellant received adequate and appropriate representation in both the trial court and this court.
In conclusion, we find no issues deserving of further briefing.
IV. DISPOSITION
The judgment, including the sentence imposed, is affirmed.
Haerle, Acting P.J. We concur: Lambden, J. Richman, J.