P. v. Coogan
Filed 6/16/08 P. v. Coogan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, Plaintiff and Respondent, v. ROBERT PAUL COOGAN, Defendant and Appellant. | B196013 (Los Angeles County Super. Ct. No. NA063367) |
APPEAL from an order of the Superior Court of Los Angeles County.
Richard R. Romero, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Robert Paul Coogan appeals from an order denying his motion to vacate the judgment imposed upon revocation of probation, previously granted following his plea of no contest to grand theft of personal property. (Pen. Code, 487, subd. (a); undesignated section references are to that code.) He was sentenced to a term of two years.
We appointed counsel to represent appellant. Counsel filed a brief raising no issues.[1] (People v. Wende (1979) 25 Cal.3d 436, 441-442.) On January 29, 2008, we advised appellant that he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. On February 13, 2008, appellant filed a Supplemental Brief and Declaration, in which he argued that at the hearing of his motion to vacate the judgment, the trial court refused to recognize him, and thus denied him the right to be heard and to submit oral and documentary evidence. Appellant also asserted that a superior court judge is not qualified to determine a defendants mental state.
The record reflects that appellant entered his plea on January 27, 2005, pursuant to a negotiated disposition. Its terms were that a second count, under section 666, would be dismissed, as would another case in which appellant was on probation, and appellant would receive a sentence of either 16 months imprisonment or three years probation conditioned on placement in a residential care facility. Appellant admitted that he had decided to settle his prosecution this way, and he acknowledged understanding the consequences of the plea.
Thereafter appellants sentence was suspended and he was placed on probation for three years, on condition he spend the first year at a designated residential care facility. After appellant violated probation by leaving the facility, the court reinstated probation, on condition of a year at another residential facility. Appellant again absconded, from the new facility. On November 22, 2006, the court revoked probation and sentenced appellant to two years imprisonment.
Two weeks later, on December 4, 2006, appellant filed in pro. per. a motion to vacate the judgment. Its grounds were that at the time of the no contest plea appellant had been rendered incapable of proper reasoning ability, because he had been deprived of medication necessary to treat his bipolar disorder and attendant major depression. In a supporting declaration, appellant stated he had been diagnosed with and chemically treated for bipolar disorder for many years, and had previously been receiving such medication through the county department of mental health. However, in October 2004 jail personnel apparently stopped allowing the medication, and appellant underwent deep depression, and agony. His pleas for treatment were ignored for some time, even though a superior court judge granted an order for examination and, if appropriate, medication.[2]
At the hearing of the motion to vacate, two years later, the judge, who had also presided at appellants plea, stated he had reviewed the transcript. He then summarized the motion, and observed that appellants declaration contained only a bare allegation of mental incapacitation at the time of the plea. (In fact, the declaration did not refer to the occasion of the plea.) The court ruled that this allegation neither set forth a basis for relief nor required an evidentiary hearing; the plea transcript contained no indication of deep depression, nor was there corroboration of the allegation through any medical report. The court denied the motion.
Appellants contention that he was denied his right to be heard and to produce evidence at the hearing is refuted by the transcript, which shows that appellant did not ask to address the court or offer further evidence. His further contention that the court was unqualified to appraise his mental state is not only erroneous but beside the point, because the court only decided that appellant had not presented facts showing what his mental state had been when he pled. Moreover, diligence is an essential qualification for a motion to vacate judgment. (5 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Criminal Judgment 187, pp. 217-218.) Here, appellant waited almost two years after he had twice undertaken and violated probation, and had finally been sentenced before asserting his motion.
We have examined the entire record, and are satisfied that appellants appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 279-280; People v. Wende, supra, 25 Cal.3d at pp. 441, 443.)
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COOPER, P. J.
We concur:
RUBIN, J.
FLIER, J.
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[1] Counsel concurrently filed a petition for habeas corpus, B205306, requesting that the judgment be modified to provide for certain custody credits. We will decide that petition separately.
[2] In this regard, the record on appeal contains several such orders, issued during November 2004. Moreover, at the preliminary hearing on December 8, 2004, appellant stated he could not presently decide about the prosecutions offer of 16 months, because he had not had his regular medication for bipolar disorder for seven weeks, and was a physical and mental wreck right now.
