Opinion
A131494
02-07-2012
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP EBAN WILLIAMS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 164102)
Phillip Eban Williams appeals from a judgment of conviction entered upon his plea of no contest to assault with intent to commit a sex crime (Pen. Code, § 220, subd. (a)) in exchange for a sentence not to exceed four years in prison. His court appointed attorney has filed a brief raising no legal issues and requesting this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
All subsequent statutory references are to the Penal Code.
PROCEEDINGS BELOW
On May 5, 2010 (all dates are in that year) the Alameda County District Attorney filed a complaint alleging that on May 2, appellant committed assault with intent to commit a sex crime (§ 220, subd. (a)) (count 1); attempted forcible rape (§ 261, subd. (a)(2)) (count 2); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 3); kidnapping (§ 207, subd. (a)) (count 4); and resisting or obstructing a peace officer (§ 148, subd. (a)(1)) (count 5). As to the first two counts, the complaint alleged inflicted great bodily injury on Doe (§ 12022.8), causing the offense to be a serious felony within the meaning of section 1192.7, subd. (c)(8)). As to the third and fourth counts it was alleged that appellant inflicted great bodily injury (§ 12022.7, subd. (a)), causing the offenses to be serious offenses within the meaning of section 1192.7, subd. (c)(8). It was further alleged that appellant suffered two prior felony convictions for which he had been sentenced to probation: possession of a firearm by a felon (former § 12021, subd. (a)(1)), and carrying a concealed firearm within a vehicle (former § 12025, subd. (a)(1)).
At a preliminary hearing held on June 30, the court found probable cause to believe appellant committed the offenses charged in counts 1, 2, and 3, and found great bodily injury as to each of those counts. (§§ 12022.8, 12022.7.) Appellant was held to answer on those counts and the great bodily injury allegations. An information incorporating those counts and allegations was filed on July 7.
On July 14, appellant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), claiming that "I wasn't represented] properly at my prelim. I feel that my attorney, had they set up a defense, the matter would have got resolved and wouldn't have made it this far to up here." The motion was denied as premature because appellant had not yet been arraigned. When trial proceedings commenced on August 30, appellant made another Marsden motion, which was heard and denied.
At that point the parties engaged in negotiations which culminated in appellant pleading no contest to count 1, but not to the great bodily injury allegation, in exchange for a sentence not to exceed four years. The trial court then dismissed the great bodily injury allegation as well as counts 2 and 3. In a letter to the court dated September 20, the public defender argued that the granting of probation would be an appropriate disposition.
At the October 4 sentencing hearing, the district attorney asked the court to impose a four year sentence. Finding appellant statutorily ineligible for probation in the absence of unusual circumstances, and that there were no such circumstances, the court denied probation and imposed the four-year midterm.
At that point appellant told the court, "I'm confused on everything right now. I don't know what's going on" because he "totally disagree[d]" with the district attorney's description of his offense, which was not what "I admitted to the police." Furthermore, appellant said, "I just don't understand why I'm being denied probation." Claiming he had been "railroaded" by his attorney, who led him to believe he would get probation with time served, appellant stated that he wished to withdraw his plea. The court denied the motion to withdraw.
The court sentenced appellant to state prison for four years, with 179 days presentence credit (a 156 actual days with 23 credits pursuant to section 2933.1), and ordered a $300 fine pursuant to section 290.3.
At a restitution hearing held on November 17, the court ordered victim restitution in the amount of $1,658.91, payable to the Victim Compensation Board.
On November 2, together with his notice of appeal, appellant filed a request for a certificate of probable cause, the substance of which is set forth, post, at page 5. After denial of such a certificate, appellant filed a second notice of appeal stating that the appeal was based on the sentence or other matters occurring after the plea that do not affect the validity of the sentence. (Cal. Rules of Court, rule 8.304(b)).
FACTS
The relevant facts are based on evidence and other information produced at the preliminary hearing, the sentencing hearing, and set forth in the probation report.
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At approximately 2:30 a.m. on May 2, 2010, Jane Doe was walking home from a party in Oakland, at which she had about four alcoholic drinks and ingested an intoxicating inhalant, or "popper." Appellant, who was leaning against a paint store, told Doe to "come here," but she refused and kept walking. After appellant called to her again, and she again said "no," appellant grabbed her by the shoulder with his other hand down toward her waist and said something like, "Fuck you! I'm going to fuck you" and started pulling down her jeans. Because Doe's jeans were zipped, they could not be pulled down further than mid-thigh. Her underwear remained fully on. According to the police report of the incident described in the probation report, at the time appellant pulled down Doe's pants he also pulled down his own, exposing his erect penis. When Doe tried to fight back appellant punched her in the face several times. Doe told the officer who appeared at the scene that she then "blacked out and could not recall what happened next."
When Doe started screaming, appellant put his hand over her mouth, which she bit while continuing to scream. Appellant then began punching Doe with his closed fist, telling her: "Shut up, bitch. Shut up." Appellant hit Doe at least five times, bruising her but not breaking any bones. As appellant was grabbing and punching her, Doe continued resisting.
A woman named Trish found Doe on the curb, helped her pull up her pants, and called an ambulance. Doe was taken to Highland Hospital where she was interviewed by Detectives Wright and Percy. Doe had two black eyes, her entire face was very swollen, and her left eye remained shut for several days. The swelling went down after about a month, but bruises remained at the preliminary hearing, which took place almost two months after the assault, as did a large cut over her right eye.
Appellant acknowledged his wrongdoing but maintained that he committed nothing more than a simple battery. He told the probation officer that he had been intoxicated, had a problem with alcohol, and wished to participate in a rehabilitation program. During the sentencing hearing, and in connection with a subsequent motion to withdraw his plea, appellant argued that the charges were overstated. Objecting to the district attorney's characterization of his vehicle as a "rape van," he allowed that it was large vehicle that had shades on it, it did not have tinted windows, and it was parked across the street from the location of the altercation. Relying upon the medical report, appellant also argued that Doe's pants fell down during the struggle because they were loose or "baggie", and Doe had not told the two detectives that he had "pulled" her pants down.
The written request for a certificate of probable cause appellant submitted after he was sentenced, which the trial court denied on November 3, states in its entirety as follows:
"Judge did not put in writing or on record that I needed to be in any type of program nor did judge referred [sic] me to any program, in which seemed unfair in dening [sic] probation. I was denied a Marsden motion to replace counsel for ineffective assistants [sic]. Counsel failed to raise issue that complaining witness admitted to being on drugs and alcohol and admitted on record also that she don't remember what she told the police. Counsel failed to raise issue that arresting officer and witness testimony and statement would of [sic] proved that greater crime didn't take place. Counsel failed to argue and suppress evidence and to convince courts that crime was a mere simple assault and not an assault with intent. Counsel failed to argue that complaing [sic] witness testimony wasn't credible due to lack of memeory [sic] and being lead [sic] by the district attorney at the prelimanary [sic] hearing. Counsel failed to argue that defendant was denied [the right] to cross examine either witness or arresting officer during prelimanary [sic] hearing. Counsel failed to argue that there[']s no d.n.a. evidence on victim or defendant's] cloth[ing], only evidence of battery and nothing more."
DISCUSSION
Where, as here, an appellant has pled not guilty or no contest to an offense, the scope of reviewable issues is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Nothing in the record before us indicates appellant was mentally incompetent to stand trial or to understand the admonitions he received from the court prior to entering his plea, and to thereupon enter a knowing and voluntary plea.
The admonitions given appellant at the time he entered his plea fully conformed with the requirements of Boykin v. Alabama (1969) 395 U.S. 298 and In re Tahl (1969) 1 Cal.3d 122, and his waiver was knowing and voluntary.
The record contains a factual basis for the plea.
The sentence imposed is authorized by law.
The only other inquiry we need make is whether the denial of appellant's pre-plea Marsden motion, which was based on the ground that appointed counsel provided ineffective assistance, was arguably erroneous. Having examined the entire record,— including, of course, the sealed transcript of the Marsden hearing and all other sealed documents—we conclude that denial of appellant's motion was proper. Appellant was at all times represented by competent counsel who protected his rights and interests.
Our independent review having revealed no arguable issues that require further briefing, the judgment is affirmed.
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Kline, P.J.
We concur:
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Haerle, J.
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Lambden, J.