P. v. Bourne
Filed 1/9/13 P.
v. Bourne CA1/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CHANNING SHALAKO BOURNE,
Defendant
and Appellant.
A133986
(Solano County
Super. Ct. No. FCR256928)
Channing
Shalako Bourne appeals from his conviction on one count of felonious assault
(Pen. Code,
title="">[1] § 245, subd.
(a)(1)), following his plea of no contest.
After Bourne filed a timely notice
of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant
to People
v. Wende (1979) 25 Cal.3d 436 (Wende)
(see Anders v. California (1967) 386 U.S. 738 (
for appeal and asks this court for an independent review of the record. (See also People
v. Kelly (2006 40 Cal.4th 106, 124 (Kelly).) Counsel attests that Bourne was advised of
his right to file a supplemental brief,
but he has not exercised that right.
We
have examined the entire record in accordance with Wende. We agree with counsel
that no arguable issue exists on
appeal and affirm.
I. Factual
Background
The
facts stated below are taken from the testimony of Deborah D. at a preliminary
hearing on October 15, 2008.
Bourne
and Deborah were dating when, on July 5, 2008, they went to a
bar. Deborah’s daughter, who worked at
the bar, drove Bourne and Deborah home.
Deborah and Bourne argued about $20 that Deborah had given Bourne to
hire a cab. While Bourne was taking a
shower, Deborah hid his laptop to force Bourne to return the money. Bourne asked Deborah where his computer was
and then grabbed her by the hair and punched her in the face. As a result, three of Deborah’s teeth were
pushed up into her palate and she suffered extensive bleeding. Bourne pulled Deborah into the bathroom where
he repeatedly struck her on the back of the head, threatening to kill her. When neighbors came to help, Bourne
threatened them. Bourne continued to assault
Deborah until she passed out. Deborah
regained consciousness in the arms of a police officer. At the hospital, doctors pulled Deborah’s
teeth back into place and anchored them with a metal bar.
II. Procedural
Background
On
October 17, 2008, following a preliminary hearing, a felony information was
filed charging Bourne with assault (§ 245, subd. (a)(1)) (count 1); battery (§
243, subd. (d)) (count 2); and false imprisonment (§ 236) (count 3).
On May 19, 2009, Bourne entered into a
negotiated plea and sentence bargain with the People, pleading no contest to
count 1, while counts 2 and 3 were dismissed.
A probation report was ordered and sentencing was scheduled.
On July 28, 2009, the court held a hearing
on a Marsden motion by Bourne, following
which it denied the motion. Bourne then
completed a Faretta waiver form and
the court questioned him regarding his Faretta rights.
The court relieved the public defender but had doubts as to Bourne’s
competency to represent himself. The
court ordered a competency evaluation and reappointed the public defender to
represent Bourne for that evaluation.
During proceedings, Bourne said that he wanted to withdraw his
plea.
On September 2, 2009, the court summarized the
competency reports as opining that Bourne was competent to stand trial but not
competent to represent himself. The
court reappointed the public defender as Bourne’s counsel. A second Marsden
hearing was then held and the court again denied Bourne’s Marsden motion. The public
defender asked the court for time to determine if there were grounds for
withdrawing Bourne’s plea.
On September 30, 2009, the public defender
informed the court that Bourne still wished to withdraw his plea, but that he
would not be filing a motion to do so.
The court observed that the public defender was not
required to file a baseless motion and stated:
“The court in this case does not feel it’s appropriate to appoint
additional counsel for that reason since there appears to be no basis to
withdraw the plea.†The court proceeded
to sentencing and placed Bourne on probation, conditioned on 180 days in
custody. Additionally, the court ordered
restitution in the amount of $7,103, and various fines and fees.
On July 12, 2011, a parole violation hearing
was held because Bourne had admitted to his probation officer that he had not
abstained from using alcohol. The court
sustained the violation and ordered a supplemental probation report.
On August 25, 2011, the court imposed and
suspended a three-year prison term and reinstated probation conditioned on a
term of one-year in jail. Following the
hearing, however, Bourne refused to sign the probation order.
On September 13, 2011, the court again suspended
proceedings and ordered competency reports pursuant to section 1368.
On October 20, 2011, the court found Bourne
competent to stand trial, based on the submitted reports, and reinstated
On October 27, 2011, the court conducted a third
Marsden hearing and denied Bourne’s
probation order, the court reinstated its sentence of August 25 and decreased
the restitution that had been ordered by $568.50.
Bourne
filed a timely notice of appeal.
Bourne’s
appellate counsel represents that the opening
brief is filed in accordance with Wende. The Wende
court held: “We conclude that
review of the entire record whenever appointed counsel submits a brief which
raises no specific issues or describes the appeal as frivolous.†(Wende,
supra, 25 Cal.3d at p. 441.)
In
this case, while purporting to file a Wende
brief, counsel has listed a number of legal issues, with citations to cases but
no supporting argument. These issues
include: (1) whether Bourne was advised
of the consequences of pleading no contest and of his constitutional rights,
and whether he waived those rights before pleading no contest; (2) whether the
record demonstrates ineffective assistance of counsel; and (3) whether the
court erred in conducting a hearing on whether the public defender should be
ordered replaced by new counsel when Bourne stated that he wished to withdraw
his plea.
When
specific issues are raised by the appellant himself in a Wende proceeding, by filing supplemental contentions, we must
expressly address them in our opinion and explain why they fail. (Kelly,
supra, 40 Cal.4th at p. 120.) Here, the issues included in the opening
brief were presented by appellate counsel, not the appellant, and
That
counsel filed the opening brief under Wende
demonstrates that he does not believe the issues he listed are arguable. If he believed them to be arguable, he could
not rely on the Wende procedure and
would be obligated to file a brief that included written argument on those
issues. (Cal. Rules of Court, rule
8.204, subd. (a)(1)(B).) Nevertheless,
we have considered the issues listed
by counsel and agree with counsel that they are not arguable and fail on the
merits: (1) Bourne signed and initialed
the waiver of rights form and affirmed that he had discussed the contents with
his lawyer. Nothing in the record
indicates a deficiency in how Bourne was advised of his rights or provides
grounds for asserting that he did not waive those rights. (2) We find nothing in the record that
demonstrates ineffective assistance of counsel.
(3) Because there were no legal grounds for Bourne to withdraw his plea
when he stated a wish to do so, the trial court did not err by failing to hold
a hearing to determine if additional counsel should be appointed to file a
baseless motion.
We
have also reviewed the record in accordance with our obligations under
issues on appeal. There are no legal
issues that require further briefing.
The
judgment is affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
all subsequent code references are to the Penal Code.
