P. v. Ball
Filed 2/14/13
P. v. Ball CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
HAROLD SCOTT BALL,
Defendant and
Appellant.
F063105
(Fresno
Super. Ct. No. F10906058)
APPEAL from
a judgment of the Superior Court of
County. Jeffrey Bird, Commissioner;
Ralph Nuñez, Judge. (Retired Judge of
the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6
of the Cal. Const.)
title="">[1]
Richard Power, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Harold Scott Ball and three associates were charged with multiple felony
offenses and gang enhancements based on their assault on a man who allegedly
owed them money from a drug deal.
Defendant entered into a negotiated disposition and pleaded no contest
to count I, felony assault by means likely to produce great bodily injury (Pen.
Code,
for the personal infliction of great bodily
subd. (a)); and count VII, misdemeanor street terrorism (§ 186.22, subd.
(a)(1)). He was sentenced to the
stipulated term of seven years.
Defendant filed a notice of appeal
and obtained a certificate of probable cause, and contends his constitutional
right to a speedy trial was violated.
The People assert that he waived any alleged speedy trial issues by
entering into the negotiated disposition. We agree with the People and will dismiss the
appeal.
FACTS
On the
afternoon of November 29, 2010, police officers responded to a residence in
Clovis where they encountered Mark Avanessian.
Avenessian reported that he had been assaulted.
Avenessian
stated that earlier that afternoon, an acquaintance known as “Bask†called him
and asked him to go to Bask’s house to work on his computer. Avenessian agreed and drove to Bask’s house
near Barstow and Minnewawa in Clovis.
When he arrived, however, he was confronted by Bask and three other
white males. He knew one of the men as
“Jacker.†Avenessian said he knew Bask
from past contacts, and he had heard about Jacker.
Avenessian
stated that Jacker accused him of being “a cop, a cop caller, a snitch.†Bask and the other two men began to assault
and beat Avenessian. Jacker did not
participate, but he watched as the other three men attacked Avenessian. The three men kicked Avenessian in the thigh
and punched him in the face. Bask picked
up a heavy wax candle in a glass container and hit him in the back of the
head. Avenessian tried to stay on his
feet, but the three men repeatedly hit Avenessian in the face, punched and
kicked him. During the assault, one of
the men took Avenessian’s wallet, and his car keys fell to the floor.
Avenessian
testified that as he was being beaten, the four men repeatedly yelled: “We’re Fresnecks. You shouldn’t mess with Fresnecks.†After they finished screaming, Bask hit
Avenessian in the head.
Jacker was still standing there,
and he said “we don’t like cop callers around here.†Jacker raised his shirt and revealed a black
revolver in his waistband.
Avenessian
stated that the men told him to get into his own car. Avenessian was scared, but he got into his
car and hoped for a chance to jump out and escape. Avenessian sat in the front passenger
seat. One of the men got into the
driver’s seat, drove away from Bask’s house, and headed to a gas station near
Bullard and Villa. Bask and another man
followed in a black Mustang. Jacker
remained at Bask’s house.
Avenessian said the man drove him
to a gas station near Bullard and Villa.
The driver of Avenessian’s car got out, walked to the black Mustang, and
got into that car. The black Mustang
then left the area, and Avenessian was left in his own car.
As a result
of the assault, Avenessian told the officers that he was in severe, almost
unbearable pain. His face and lips were
extremely swollen, and he was bleeding from his nose and mouth. The back of his head was extremely swollen to
the size of a softball. He was transported
to the hospital, where he was treated for a broken jaw and cheekbone.
Identification of the four suspects
Based on a
series of photographic lineups, Avenessian identified Marvin Boyd as “Jacker,â€
and Justin Upchurch as “Bask.â€
A
confidential informant advised the investigating officer that Robert Flores and
defendant Harold Scott Ball could have been the other two men involved in the
assault. Avenessian reviewed a
photographic lineup with defendant’s picture and identified defendant as one of
the men who assaulted him. Avenessian
said he was 100 percent certain of his identification.
Avenessian looked at a separate
photographic lineup with Flores’s picture and identified Flores as the fourth
man involved in the assault.
Flores was
arrested and said he was a former member of the “Fresneck†gang. Flores admitted he was present when a man
named “Mark†was assaulted. Flores said
that defendant, Upchurch, and Marvin “Jacker†Boyd were also there. Defendant was driving a black Mustang. Flores believed the assault occurred because
“Mark†owed money to Upchurch from a drug deal.
Flores said that defendant punched the victim several times. Flores also said that Upchurch was yelling
that he was a “Fresneck.†Boyd lifted up
his shirt and displayed a gun to the victim.
Upchurch took the victim’s wallet, and they drove him to the gas station
and left him there.
The felony complaint
On February
9, 2011, a complaint was filed in the Superior Court of Fresno County charging
defendant Harold Scott Ball, and codefendants Upchurch and Boyd, with count I,
assault by means likely to produce great bodily injury (§ 245, subd.
(a)(1)); count II, battery with serious bodily injury (§ 243, subd. (d));
count III, second degree robbery (§ 211); count IV, dissuading a witness
by force or threat (§ 136.1, subd. (c)(1)); count V, kidnapping
(§ 207, subd. (a)); and count VI, street terrorism (§ 186.22, subd.
(a)). Upchurch was separately charged
with count VII, possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)).
As to
counts I through V, it was further alleged the offenses were committed for the
benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)).
On February
9, 2011, defendant was arraigned. He pleaded
not guilty, denied the special allegations, and entered a general time waiver.
On February
16, 2011, defendant, who was out of custody, failed to appear, and the court
issued a bench warrant. On February 18,
2011, defendant appeared after being taken into custody. He declined to waive time.
The preliminary hearing
On March 4,
2011, the court conducted a preliminary hearing only for defendant’s case. The prosecution’s gang expert testified that
the “Fresneck†gang was likely a subset of the “Peckerwood†white supremacist
criminal street gang in Fresno County.
The “Fresneck†gang also associated with members of the Highly Insane
Criminals and Skinheads. The gang expert
testified the primary activities of the Peckerwood gang included auto thefts, home
invasion robberies, and weapons offenses, and testified about predicate
offenses committed by members of the Peckerwood gang.
The gang
expert testified that defendant, Boyd, Upchurch, and Flores had previously
admitted to being members of the Peckerwood gang, based on their prior contacts
with law enforcement officers and when they were booked into jail.
The expert further testified that
defendant was an active member of the Peckerwoods and was known as
“Maniac.†He had a large tattoo which
said “Fresno Peckerwood†across his back, plus tattoos of swastikas and “white
supremacy markings.â€
After
hearing the evidence, the court dismissed count III, robbery, for insufficient
evidence, and held defendant to answer on the other charges and special allegations.
The informations
On March
11, 2011, an information was filed only against defendant (No. F10906058),
charging him with count I, assault by means likely to produce great bodily
injury, with an enhancement for the personal infliction of great bodily injury
(§ 12022.7, subd. (a)); count II, dissuading a witness by force or threat;
count III, kidnapping; and count IV, street terrorism. The gang enhancement was alleged as to counts
I, II, and III.
On March
18, 2011, defendant was arraigned on the information and pleaded not
guilty. The trial confirmation was set
for April 21, 2011.
On April
12, 2011, a separate information was filed against codefendants Upchurch and
Boyd (with the same case No. F10906058), charging them with count I, assault by
means likely to produce great bodily injury, with an enhancement for personal
infliction of great bodily injury; count II, battery with serious bodily
injury; count III, second degree robbery; count IV, dissuading a witness by
force or threat; count V, kidnapping; count VI, street terrorism. The codefendants were separately charged with
drug and firearm offenses. The gang
enhancement was alleged as to counts I through IV.
Initial continuances
On April
21, 2011, codefendants Upchurch and Boyd requested a continuance so they could
obtain discovery, conduct further investigation, and determine whether to
retain a gang expert, particularly since the gang allegations raised the
possibility of a life term.
Defendant’s attorney objected to
any continuance, stated that he would not waive time, and that his case
“timed-out†on May 17, 2011. Defendant
further argued that he was charged in a separate information, that his case was
thus separate from Upchurch and Boyd, and he should not be subject to their
continuance motion.
The prosecutor replied that
defendant, Upchurch, and Boyd were charged under the same case number and
should be tried together. Defendant’s
preliminary hearing had been held separately because he initially failed to
appear, and his preliminary hearing was delayed.
Defendant replied that there was no
evidence of good cause to continue his separately-filed case. Defendant argued that a continuance beyond
the 60-day time period would violate his speedy trial rights, “and it would be
something we would explore taking a writ on.â€
Defendant complained that the prosecution was trying to “short circuit
[his] speedy trial rights.â€
Commissioner Bird found good cause
and granted the motion to continue the case as to all three parties over
defendant’s objection. The trial
confirmation was continued to June 2, 2011, with the trial set for June 13,
2011.
On June 2,
2011, the court granted a defense motion for discovery and continued the trial
confirmation hearing to June 8, 2011.
The trial was still set for June 13, 2011.
On June 8,
2011, the court continued the trial confirmation to June 10, 2011, with the
trial date remaining on June 13, 2011.
First amended joint information
On June 10,
2011, a first amended information was filed which jointly charged defendant and
his codefendants with count I, assault by means likely to produce great bodily
injury, with an enhancement for personal infliction of great bodily injury;
count II, second degree robbery; count III, dissuading a witness by force or
threat; count IV, kidnapping; and count VII, street terrorism. The gang enhancement was alleged as to counts
I through IV. It was further alleged
that defendant had one prior strike conviction.
Codefendants, Upchurch and Boyd,
were separately charged with drug and firearm offenses and prior conviction
allegations.
Additional continuances
Also on
June 10, 2011, after the amended information was filed, defendant, Upchurch,
and Boyd pleaded not guilty and denied the special allegations. Upchurch moved for a continuance so he could
file a motion for funds to hire a gang expert since the gang allegations
potentially carried a life term.
Upchurch also noted that the parties were still in plea negotiations.
Defendant objected and argued that
he had been separately charged and held to answer. Defendant complained his rights had already
been violated because his case had “timed out†on May 16, 2011, “[s]o we want
to preserve that issue for appeal. We’re
not participating in the trial setting dates.â€
Defendant also noted that the prosecutor
had offered a “package†plea for defendant, Upchurch, and Boyd, and defendant
had considered that offer. However,
defendant just learned that the prosecutor alleged a prior strike conviction. The prosecutor replied that he was trying to
obtain the relevant documents to determine if defendant’s prior conviction was
a strike, because “[t]hat would obviously affect negotiations.†The prosecutor stated that Upchurch had good
cause to continue, and asserted that all three cases should be kept together if
the court found good cause.
Upchurch and Boyd stated they were
ready to accept the plea offer. However,
the prosecutor stated that all plea offers had been revoked but negotiations
would continue.
Judge Nuñez found good cause to
grant Upchurch’s motion to continue, and continued the trial as to all three
parties. The trial confirmation was set
for June 17, 2011.
On June 17,
2011, Boyd and Upchurch requested another continuance. Upchurch’s proposed expert would not be
available for another six to eight weeks.
In addition, Upchurch and Boyd explained there was an outstanding offer
from the prosecution, and they believed the cases would settle within one
week. Upchurch and Boyd waived
time. Defendant objected to any
continuance.
Commissioner Bird found good cause
to continue the matter over defendant’s objections, based on the unavailability
of Upchurch’s gang expert. The trial
confirmation was set for June 24, 2011.
The plea proceedings
On June 24,
2011, Commissioner Bird conducted a plea hearing for defendant, Upchurch, and
Boyd. First, the court granted the
prosecution’s motion to reduce count VII, street terrorism, to a misdemeanor.
Thereafter, codefendant Upchurch pleaded no contest to
count I, felony assault by means likely to produce great bodily injury
(§ 245, subd. (a)(1)), with the personal infliction of great bodily injury
enhancement (§ 12022.7, subd. (a)); and count VII, misdemeanor street
terrorism (§ 186.22, subd. (a)), with a stipulated term of seven years.
Next, codefendant Boyd similarly pleaded no contest to the same two
offenses, and also to the offense of possession of a firearm by a felon
(§ 12021, subd. (a)(1)), for a stipulated term of seven years.
The court then turned to defendant’s case. Defendant’s attorney stated:
“[Defendant] is going to enter the admissions to the
same things that the co-defendants have.
He’s going to … plead no contest to Count One, [section] 245(a)(1),
admit the [section] 12022.7 enhancement.
He’s going to plead no contest to Count Seven as amended by the People
to a [section] 186.22 (a), and he’s going to admit the narrow factual issue
that in 1988, in Madera Superior Court, a jury convicted him of a [section]
245(a)(1). He’s going to reserve the legal issue as to
whether or not that is sufficient to evidence a strike, and Your Honor has
agreed to hear and make a determination in a court trial. My client is willing to stipulate to an
eleven-year sentence if the court finds it to be a strike beyond a reasonable
doubt, and he’ll stipulate to a seven-year sentence if it’s found not to be a
strike.†(Italics added.)
The court asked the prosecutor if he agreed with the stated terms. The prosecutor said yes. The court asked defendant if he understood
the terms of the plea agreement, and defendant said yes.
The court reviewed defendant’s change-of-plea form. The form stated that defendant would plead no
contest to felony count I, misdemeanor count VII, and admit the personal
infliction enhancement. He would admit
the fact of his prior conviction, but he would not admit that it was a
strike. The stipulated sentence was
seven years if the prior conviction was not a strike and 11 years if it was a
strike. Defendant further stipulated to
the preliminary hearing transcript for the factual basis. There were no other stated terms on the plea
form.
The court asked defendant if he had reviewed the plea agreement with
his attorney and understood the terms, and defendant said yes.
“THE COURT: …
Other than what’s been stated in open court on the record about your case and
set forth on the plea form, has anyone made any other promises to you or
threatened you in any way to get you to enter your plea?
“THE DEFENDANT: No.â€
Defendant then pleaded no contest to count I, felony assault by
means likely to produce great bodily injury, and count VII, misdemeanor street
terrorism. Defendant admitted the great
bodily injury enhancement as to count I.
Defendant also admitted that he suffered one prior conviction for felony
assault with a deadly weapon or by force likely to produce gross bodily injury.
Defendant declined to admit the
prior conviction was a strike and waived a jury trial to determine the truth of
the strike allegation. The court
dismissed the remaining charges and allegations and granted defendant’s motion
for a bench trial as to whether the
prior conviction was a strike. The court
and defendant stipulated that his aggregate term would be seven years if the
court found his prior conviction was not a strike, or it would be 11 years if
the court found the prior conviction was a strike.
Bench trial and sentencing
On July 25,
2011, defendant filed a trial brief as to whether his prior conviction was a
strike. Defendant’s brief stated that
when he entered his plea, he “explicitly reserved the issue of whether the
[prior] conviction amounts of a strike.â€
Defendant did not raise or address any other issues.
On August 8, 2011, Commissioner
Bird conducted a bench trial and found defendant’s prior conviction for assault
did not constitute a strike.
Thereafter,
the court sentenced defendant pursuant to the negotiated disposition to the
stipulated term of seven years: the
upper term of four years for count I, with a consecutive term of three years
for the great bodily injury enhancement, plus a concurrent term of 224 days in
county jail for count VII.
name="_ftnref5" title="">[4]
Notice of appeal/certificate of probable cause
On August 11, 2011, defendant filed
a notice of appeal, which stated: “Defendant’s speedy trial rights were denied
when the court repeatedly continued this case over his objection at the request
of attorneys for other individuals.†On
the same day, defendant requested a certificate
of probable cause.
On August 18, 2011, the court
granted defendant’s request for a certificate of probable cause.
Defendant
waived appellate review of his speedy trial contentions based on his no contest
plea.
Defendant
contends the superior court’s repeated decisions to grant his codefendants’
pretrial motions for continuances, over his objections, violated his federal
and state constitutional rights to a
speedy trial, and his statutory right to a speedy trial. The People respond that defendant waived
appellate review of these contentions when he entered into the negotiated
disposition and pleaded no contest. We
agree with the People.
“A criminal defendant’s guilty plea not only
constitutes an admission of every element of the offense charged, waives trial,
and concedes the prosecution possesses admissible evidence sufficient to prove
guilt beyond a reasonable doubt, it also waives any irregularity in the
proceedings which would not preclude a conviction. [Citation.]â€
(Ricki J. v. Superior Court
(2005) 128 Cal.App.4th 783, 792.) A no
contest plea is the legal equivalent of a guilty plea, and defendant in this
case was so advised. (§ 1016, subd.
3; People v. Wallace (2004) 33
Cal.4th 738, 749; People v. Warburton
(1970) 7 Cal.App.3d 815, 820-821.)
“The Sixth Amendment to the federal Constitution, as applied to the
states through the due process clause of the
guarantees a criminal defendant the ‘right to a speedy and public trial.’ Similarly, article I, section 15 of the
California Constitution guarantees an accused the ‘right to a speedy public
trial.’ The California Legislature has
‘re-expressed and amplified’ these fundamental guarantees by various statutory
enactments, including Penal Code section 1382.
[Citation.]†(People v.
Harrison (2005) 35 Cal.4th 208, 225.)
“ ‘[A] defendant’s failure to timely object to the delay
and thereafter move for dismissal of the charges is normally deemed a waiver of
his right to a speedy trial.’ †(
While defense counsel objected to the continuances motions made by the
codefendants, and complained that defendant’s speedy trial rights were being
violated, defendant never moved for a dismissal of the charges based on the
alleged violation of his speedy trial rights.
More importantly, however, “the cases are virtually uniform in holding
that a claim of speedy trial violation – whether statutory or constitutional –
does not survive a guilty plea.
[Citations.]†(
1355, 1357 (Hernandez); see also
839, 847; People v. Egbert (1997) 59
Cal.App.4th 503, 506, 512-513 (Egbert);
People v. Lee (1980) 100 Cal.App.3d
715, 717.)
“The essence of a defendant’s speedy trial ... claim in the usual case
is that the passage of time has frustrated his ability to establish his innocence. The resolution of a speedy trial or due
process issue necessitates a careful assessment of the particular facts of a
case in order that the question of prejudice may be determined. [¶]
Where the defendant pleads guilty, there are no facts to be
assessed. And since a plea of guilty
admits every element of the offense charged, there is no innocence to be
established.†(People v. Hayton (1979) 95 Cal.App.3d 413, 419, fn. omitted.) “[T]he weighing process required to establish
a constitutional speedy trial violation necessitates consideration of prejudice
to the accused in the particular context of the case. By pleading guilty, a defendant concedes the
absence of prejudice, having admitted ‘ “all matters essential to the
conviction.†’ [Citations.] Viewed in this way, a guilty plea in both
felony and misdemeanor prosecutions forecloses any further inquiry into whether
there has been a deprivation of a defendant’s speedy trial right.†(Egbert, supra, 59 Cal.App.4th at p.
511, fn. omitted.)
The same analysis applies regardless of whether the defendant has
pleaded guilty or no contest to a felony or misdemeanor offense. (People
v. Aguilar (1998) 61 Cal.App.4th 615, 622 (Aguilar); Hernandez,
appealability of a claimed speedy trial violation, whether constitutional or
statutory, does not depend on whether the charges are misdemeanors or felonies.
Instead, principles of waiver applicable
to guilty pleas in general control.
Rather than create rules that are subject to the vagaries of the
dismissal statutes and varying interpretations of constitutional principles,
rules we believe would ultimately prove unworkable, we believe the better
policy is a uniform rule stating a claimed speedy trial violation, statutory or
constitutional, does not survive a guilty plea to either a misdemeanor or a
felony.†(Egbert, supra, 59
Cal.App.4th at p. 515.)
In the instant case, defendant entered into a negotiated disposition
and pleaded no contest to a felony and misdemeanor offense, admitted the
personal infliction enhancement, and his prior conviction for assault. Defendant stipulated that he would be
sentenced to 11 years if the court found his prior conviction was a strike, or
he would receive seven years if the court found it was not a strike. After a bench trial, the court found the
prior conviction was not a strike and sentenced defendant to the stipulated term
of seven years. Having entered into a
negotiated disposition, defendant waived appellate review of any alleged
constitutional or statutory speedy trial violation.
II. Defendant may not
withdraw his plea
In the
alternative, defendant asserts that if this court finds that his no contest
pleas amounted to a waiver of appellate review of his speedy trial contentions,
then the matter should be remanded to permit him to withdraw his pleas and
admissions. Defendant asserts that he
entered into the negotiated disposition with the understanding that he would be
able to seek appellate review of his speedy trial arguments. Defendant argues that since the superior
court could not authorize appellate review of his speedy trial claim, his pleas
and admissions are void, and he should be permitted to go to trial.
A similar argument was addressed in
People v. Lee (1980) 100 Cal.App.3d 715 (
In that case, however, the defendant pleaded guilty pursuant to a plea
agreement which expressly provided that he could raise his
appeal. (Id. at p. 718, fn. 1.)
claim was not reviewable on appeal because he had pleaded guilty. (Id.
at p. 717.) However,
defendant to withdraw his plea based on the trial court’s improper attempt to
preserve his speedy trial contentions as part of the plea agreement: “Since we have concluded that defendant’s
claim is not reviewable on appeal, it was improper for the trial court to
approve the negotiated plea bargain purporting to provide the otherwise
illusory right of appeal.
[Citation.] The resulting failure
to properly advise the defendant of the consequences of his conditional plea rendered
the plea bargain itself procedurally defective.
[Citation.] Accordingly, the
judgment of conviction must be reversed and remanded with instructions to
permit the defendant a reasonable opportunity to
his plea of guilty if he so elects, and to undertake such further proceedings
as may be necessary.†(
Hernandez, supra, 6 Cal.App.4th 1355
addressed a different situation, where the superior court denied the
defendant’s motion to dismiss on speedy trial grounds. The defendant pleaded guilty pursuant to a
plea bargain. The defendant filed a
notice of appeal and sought review of the court’s denial of his
held the defendant’s speedy trial issues did not survive his guilty plea. (Id.
at p. 1357.) The defendant alternatively
sought to withdraw his plea and argued that “ ‘[a] reading of the
plea bargain in the instant case and of the certificate of probable cause
issued by the trial judge, clearly shows that the issues set forth in
appellant’s opening brief were preserved, and further, that part of the plea
agreement was that the defendant remain released on his own recognizance
pending the appeal.’ †(
Hernandez disagreed and distinguished the case from the situation in
(Hernandez,
fn. 6.) “As pertinent to this
contention, the change of plea form signed by defendant merely recites that
‘Deft Remain Free Pending Appeal .…’
In accepting the plea, the court merely ensured that defendant
understood the rights he was giving up and that the court was bound only by a
midterm ‘lid.’ At the actual sentencing,
the court apparently signed a certificate of probable cause [citation], as to
which it is only apparent that some earlier discussions had been held. The
record contains no representation by the court that an appeal would be
permitted, nor any understanding that defendant’s plea was conditioned upon
such an assumption.†(
omitted.)
Hernandez further explained:
“[T]he trial court’s acquiescence in a defendant’s
expressed intention to appeal is wholly ineffective to confer jurisdiction on
the appellate court if the issue proposed to be raised is in fact not cognizable
on appeal. ‘Obtaining a certificate of probable cause
does not make cognizable those issues which have been waived by a plea of
guilty.’ [Citations.]
sort of agreement by the trial court that defendant could appeal the denial of
the two motions, we would not be bound by such an agreement, but would remain
subject to the statutory limitations on our jurisdiction imposed by the
Legislature and encompassed by section 1237.5.†(Hernandez,
supra, 6 Cal.App.4th at p. 1361, fn.
omitted.)
In the instant case, in contrast to Lee,
defendant did not enter his pleas pursuant to a negotiated disposition that
expressly provided that he could seek appellate review of his speedy trial
contentions. Instead, as in
pleas and admissions without making any representations or statements that he
believed he was preserving his right to seek appellate review of his speedy
trial issues. Moreover, the court’s
decision to grant defendant’s request for a certificate of probable cause did
not amount to a representation that such an act was a condition of the plea
agreement.
Defendant asserts he entered his pleas and admissions with the
understanding that he could seek appellate review and points to comments made
by his attorney at the hearings on April 21, 2011, and June 10, 2011. The lengthy procedural history of this case
refutes these contentions. At the time
of both hearings, defendant objected to the motions made by his codefendants to
continue a joint trial. Defendant
repeatedly argued that he was ready for trial, that there was no good cause to
continue his case, he should be tried separately, and that further delay would
violate his right to a speedy trial.
During the June 10, 2011, hearing, defendant acknowledged that the
prosecutor had offered a “package†plea to all defendants, but he had refused
to accept the offer because the prosecutor had added a prior strike conviction
in the first amended joint information.
Defendant never said that he was trying to preserve his appellate rights
as part of the plea.
On June 24, 2011, the court conducted the plea proceedings for
defendant, Upchurch, and Boyd. Defense
counsel stated the terms of the negotiated disposition, and specifically stated
that the parties had agreed that defendant could admit his prior conviction,
but that the court would determine whether that prior conviction was a
strike. Such a condition was also
included in the written plea agreement.
The court asked defendant if additional promises had been made, other
than what had been stated in open court, and defendant said no. When defendant subsequently filed his trial
brief on the strike issue, he stated that he explicitly reserved that issue
when he entered his pleas and admissions.
On August 8, 2011, the court found the prior conviction was not a strike
and sentenced defendant to the stipulated term of seven years.
Having
reviewed the entirety of the record, there is no evidence the superior court
represented to defendant that an appeal would be permitted as to his speedy
trial issues, or that there was an understanding that defendant’s pleas were
conditioned upon such an assumption.
(See, e.g., Hernandez,
Finally, defendant contends that
his plea contemplated appellate review of his speedy trial issues based on the
certificate of probable cause. On August
8, 2011, defendant was sentenced. On
August 11, 2011, defendant filed a notice of appeal and request for a
certificate of probable cause, which
stated that it was based on the alleged violation of his speedy trial
rights. In light of the record
before this court, the superior court’s decision to grant defendant’s request
for a certificate of probable cause does not mean that defendant’s appellate
rights were contemplated as part of the negotiated disposition. “It
is well settled that the right to appeal is wholly statutory and that a
judgment or order is simply not appealable unless expressly made so by
statute.
788-789.) “ ‘Obtaining a
certificate of probable cause does not make cognizable those issues which have
been waived by a plea of guilty.’
[Citations.]†(
We thus find this case inapposite
to Lee, and the matter need not be
remanded for defendant to withdraw his pleas and admissions.
The appeal
is dismissed.
Franson, J.
and June 17, 2011, hearings; Judge Nuñez presided over the June 10, 2011,
hearing.
