P. v. Chapman

Filed 10/4/07 P. v. Chapman CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Barry Hammer, Judge. (Retired Judge of the San Luis Obispo Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)

Charlotte Chapman, in pro. per., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In this second appeal following entry of a nolo contendere plea, appellant Charlotte Chapman challenges the denial of her motion to withdraw the plea.^[1] None of appellants arguments are persuasive. We will affirm.

FACTS

Appellant was charged with four felony counts of violating Penal Code section 550, subdivision (a)(1), and one misdemeanor offense.^[2] She was represented by privately retained counsel, Randy Edwards.

A. The Change of Plea Proceedings

Appellant accepted a negotiated plea bargain. In exchange for her agreement to plead nolo contendere to one count of violating section 550, subdivision (a)(1), and payment of restitution, the prosecutor agreed to dismiss the remaining counts and to affirmatively recommend probation.

Judge Louis Bissig both accepted the plea and sentenced appellant.

The change of plea hearing occurred on February 24, 2003. Therein, Judge Bissig explained to appellant that even if she paid $50,000 restitution prior to sentencing and the district attorney recommended probation, he could sentence her to a maximum of five years imprisonment. Judge Bissig ensured that appellant understood that she faced possible imprisonment as a result of her plea.

First, he asked appellant the following question:

The plea agreement here is for an admission of Count I with dismissal with a Harvey^[[3]] Waiver as to Counts II, III, IV and V, theres going to be a deferral of your sentencing date to give you an opportunity to try to make restitution. If youre successful in paying back at least $50,000 of victim restitution by the sentencing date, the District Attorney is going to be recommending probation, but that doesnt mean that the Courts going to impose that. I still could -- after reviewing that probation report, I could make a determination that it is not an appropriate case for a grant of probation and you could be sent to prison, even if youve complied with that expectation and the District Attorney has recommended a grant of probation; do you understand that? The sentencing decision is going to be up to the Court.

Appellant replied, Yes.

When advising appellant of her possible prison exposure, Judge Bissig obtained clarification from the prosecutor that the applicable triad was two, three and five years. He ensured that appellant understood that she could be sentenced to five years imprisonment, as follows:

Two, three, five. That means that there would be a potential upper term of five years, the presumptive sentence is three years, the low term is two years if youre sent to prison. Theres a possibility of probation. If you were placed on probation, you could receive up to twelve months of county jail as one of the conditions of your probation; do you understand those possibilities?

Appellant requested a moment to confer with Edwards. A discussion was held between appellant and Edwards. Immediately afterwards, Judge Bissig asked appellant, Do you understand that? Appellant replied, Yes.

Judge Bissig also stated:

And if you are sentenced to prison, youd be placed on parole after your release from prison for up to three years. If you violate parole, you could be returned to prison for up to twelve months for each violation of parole and have your parole period extended to four years; do you understand that?

Appellant responded, Yes.

Judge Bissig also asked appellant whether any promises or threats had been made to her as an inducement to change her plea, as follows: Are there any other promises or any threats being made to get you to enter the plea to Count I? Appellant replied, No.

B. The sentencing hearing

The probation officers report recommended denial of probation.

Judge Bissig provided the parties with a tentative ruling stating that he would deny probation.

At the sentencing hearing both the prosecutor and Edwards argued in favor of probation. Judge Bissig rejected these arguments and sentenced appellant to the midterm of three years imprisonment.

C. The first appeal

This court affirmed the conviction on direct appeal in People v. Chapman, No. F043274.^[4] In that appeal, appellant unsuccessfully argued that Judge Bissig erred by relying on improper factors in denying probation and that Edwards was ineffective for failing to prevent Judge Bissig from relying on these improper factors. Justice Gomes concurred in the disposition but wrote separately to note that at oral argument appellants counsel admitted that he should have raised the issue whether Edwards was ineffective for not having sought relief under Penal Code section 1192.5 when Judge Bissig announced that he intended to impose a state prison sentence.

D. The habeas proceeding -- evidentiary hearing

Appellant filed a petition for writ habeas corpus in the superior court on June 17, 2004. She was represented by privately retained counsel, James Courshon, during the habeas proceeding and subsequent matters in the superior court.^[5]

Appellant asserted that Edwards was ineffective before and after she entered her plea and that Edwards had an undisclosed conflict of interest. Judge Barry Hammer conducted a three-day evidentiary hearing during which Edwards and appellant testified (the habeas hearing).

In relevant part, appellant testified that Edwards privately told her that she was guaranteed probation. She believed that the plea bargain had been worked out whereby she was would receive probation if she paid restitution. When the change of plea proceeding was halted so that she could confer with Edwards, he told her, that I had a plea bargain with the judge and the district attorney and himself and they had an agreement and not to worry, I wasnt going to do prison time or jail time as long as I paid the restitution in a timely manner. Edwards told her to answer yes to all of Judge Bissigs questions and she followed his advice.

Appellant admitted that she recalled Judge Bissig telling her at the change of plea proceeding that she could be sentenced to prison. She also admitted answering no when he asked if any other promises had been made to her other than what has been stated in open court. She admitted that she did not inform Judge Bissig that Edwards told her that she had been guaranteed probation. She admitted that she lied to Judge Bissig when she told him that no other promises had been made to her.

Appellant also admitted receiving letters from Edwards before and after she changed her plea in which Edwards informed her that the sentencing decision was entirely up to Judge Bissig and that she could be sentenced to a maximum of five years imprisonment. She testified that after receiving each of these letters, she telephoned Edwards and he reassured her that she would not be sentenced to prison. Edwards told her, Dont worry. You have a plea bargain. Theyre just trying to scare you. The probation officer is trying to scare you. She believed Edwardss verbal reassurances.

Edwards testified that he did not tell appellant that she was guaranteed probation. Edwards testified that I always told [appellant] that [prison] was a possibility. I didnt think it was very likely, but it was a possibility. Although she had an excellent chance of being granted probation, he always informed appellant during their discussions that the sentencing was totally up to the Judge, and she still faced a possibility of going to prison. Edwards explained that [s]entencing bargaining does not occur in Kings County because [e]very Kings County Judge in criminal cases, they appear over, say they want to have total control over sentencing, and they will determine what is the appropriate sentence. Edwards elaborated:

I told her I thought she had a very good chance of it. I never promised or ever said for sure she would. I thought we had an excellent chance of getting it based on two factors. Primarily, one, we did have a discussion with Judge Bissig in chambers during a pretrial hearing where I tried to get this set up as a conditional plea. In other words, if she entered her plea and they decided to sentence her to prison she would withdraw her plea. The Judge did not accept a conditional. Thats also not done in Kings County with the judges in my experience. But in my discussions, in that we talked a little bit about the facts of the case with Judge Bissig, the fact she did not have any prior criminal convictions and the fact, primarily, she was going to make a substantial restitution payment, and the Judge indicated he wouldnt take a conditional plea, and he said, okay, shell probably get probation anyway if she does all those things, that was a significant factor, plus your commitment and obligation to affirmatively argue for probation, I thought those two factors together made her chances of getting probation excellent. But I never guaranteed she would get that. In fact, I had written her a couple letters reminding her of that, reminding her of a couple of things. One, if she still wanted to go to trial, we could do that, and two, reminding her that the probation, I thought it was a very good chance. She -- but that she -- that it was not guaranteed.

On Nov. 22, 2005, a written order was filed denying the petition for writ of habeas corpus in part and granting it in part. In relevant part, Judge Hammer determined that the plea bargain was not conditional. Also, he concluded that Edwards was not deficient in waiving preliminary hearing and that Edwardss investigation was not deficient. Furthermore, Edwardss advice to appellant to accept the plea was not deficient in light of the evidence. However, Edwards was ineffective at sentencing. Although Edwards advised appellant of the possibility that she could be sentenced to prison he did little to avoid it. There was advance notice of the possibility that appellant could be sentenced to prison because Judge Bissig had refused to accept a conditional plea. The statement of probation officer Fujisawa to [appellant] that she was going to prison was communicated to Edwards on March 18 , more than a month before sentence. This should have been a red flag that something out of the ordinary needed to be done or at least attempted. Yet, Edwards did not request additional time to review the report with appellant and obtain additional information, attempt to correct numerous errors in the probation report, request an evidentiary hearing, file a statement in mitigation or vigorously represent her during the sentencing hearing. Judge Hammer ordered the commitment recalled and a new sentencing hearing to be held.

E. The withdrawal motion

Prior to resentencing, appellant filed a motion to withdraw her no contest plea or to dismiss the charges (the withdrawal motion). Judge Hammer heard the withdrawal motion.

The hearing on the withdrawal motion commenced on April 24, 2006.^[6] Courshon argued that appellant should be permitted to withdraw her plea because it was entered due to a mistaken belief on her part that she had violated the law by accepting $4,700 in permanent disability. An issue was raised during this hearing whether Judge Bissig erred by failing to find a factual basis for the plea. Judge Hammer continued the hearing for further briefing and argument on the issue of the factual basis for the entry of the plea.

In points and authorities filed on May 8, appellant asserted for the first time that Edwards incorrectly advised her that the conviction could be reduced to a misdemeanor.^[7] In relevant part, Courshon wrote on appellants behalf: In addition to the above problem, another issue has arisen as to the fact that it was the defendants understanding that the charge to which she [pled] no contest could ultimately be made a misdemeanor. In addition to all of the other grounds, it now appearsthatshe has an additional ground based upon the fact that she received ineffective assistance of counsel at the time of the plea by being told that the charge could ultimately be made a misdemeanor. (Emphasis added.) Appellant also argued that there was no factual basis for the plea. Appellant submitted a copy of an undated handwritten note purportedly authored by Edwards. It contains the phrases reduce to misd and not misdemeanor. The latter phrase is underlined twice. Appellant previously submitted this handwritten note as evidence in support of her habeas petition.

Further hearing on the withdrawal motion was held on May 10. Judge Hammer rejected appellants contention that she should be permitted to withdraw her plea because Judge Bissig did not find a factual basis supporting it. Judge Hammer ruled that this challenge was untimely; it should have been raised in the first appeal or in habeas petition. Also, a factual basis was not required because the plea was unconditional. In any event, there is evidence establishing a factual basis for entry of the plea.

However, Judge Hammer was interested in appellants contention that Edwards had misadvised her that the conviction could be reduced to a misdemeanor. During the hearing, Judge Hammer set forth his recollection of the facts as follows: [T]here was a request by Mr. Edwards that the matter be a misdemeanor. Your office insisted on a felony plea. The Prosecutor replied, Correct. The court continued, But thats not inconsistent with a plea to a wobbler where it can be reduced to a misdemeanor, and as I understand the law, if Mr. Edwards did, in fact, tell her, and my notes indicate that he testified that he believed that he did, that it could be reduced to a misdemeanor, that that, in fact, is an erroneous statement of the law. The prosecutor replied that because the issue had been belatedly raised, he did not have an opportunity to obtain a declaration from Edwards to determine whether appellant had been misadvised. Also, appellant has not mentioned this misadvisement during her testimony at the habeas hearing. Judge Hammer tentatively granted the withdrawal motion based on Edwardss misadvisement and scheduled further hearing on this issue for June 8.

Both parties filed points and authorities prior to the June 8 hearing addressing the legal consequences of Edwardss misadvisement. The prosecutor wrote that erroneous advisement regarding a collateral consequence of a plea is insufficient to allow the withdrawal of a plea unless the misstatement was significant enough to cause a reasonable person not to enter the plea. He argued that appellant had not demonstrated reliance on the misadvisement because it had not been mentioned in any prior proceedings or in any of her prior declarations. In response, Courshon wrote that the misadvisement was significant enough that it would cause a reasonable person not to enter the plea and that the misadvisement actually played a significant role in appellants decision to accept the plea bargain.

At the outset of the June 8 hearing, the prosecutor conceded the misadvisement. The prosecutor argued that the withdrawal motion should be denied because appellant had not shown that the misadvisement affected her decision to enter a plea and had not shown that a reasonable person would not have entered the plea if he or she had been properly advised on this point.

In his responsive argument, Courshon acknowledged that he was aware of the applicable legal standard. He argued that I think you can say that a reasonable person would not have entered the plea if they didnt know they were going to be branded as a permanent felon.

Judge Hammer denied the withdrawal motion. He found that appellant was told the matter could be reduced to a misdemeanor. However, this misadvisement does not warrant withdrawal of the plea because appellant did not rely on it and it was not the basis for her acceptance of the plea bargain. He made a factual finding against appellants credibility. He found, As far as her credibility is concerned, Im going to find against her testimony . Judge Hammer explained that there was no basis in the evidence supporting her assertion that she would not have accepted the plea if she had been advised that the offense could not be reduced to a misdemeanor if she was sentenced to prison.

Judge Hammer also found that a reasonable person would not have based his or her decision whether to accept the plea bargain on the misadvisement.

Judge Hammer explained his reasoning, as follows:

[] I dont find any reliance or prejudice in this case. I believe the main concerns of the defendant at the time she entered the plea were obtaining probation, getting the commitment of the district attorney to recommend probation and avoiding incarceration. Ill find that she did in fact not rely on the advice of Mr. Edwards, that that wasnt what caused her to change her plea, it wasnt a significant factor and that a reasonable person -- and its not been shown that a reasonable person would not have entered the plea had it not been for that advice.

Judge Hammer concluded that the misadvisement is in fact an afterthought, something that came up towards the end of the proceedings rather than a motivation at the time involved.

F. The second sentencing hearing

Appellant was sentenced immediately thereafter. She was placed on probation for a period of three months. Restitution of $55,872.10 was imposed and a restitution fine of $200 was imposed. She was given credit for payment of these sums.

DISCUSSION

I. Appellants plea was not conditional; therefore, Judge Hammer properly rejected appellants claim that she was entitled to withdraw her plea because Judge Bissig did not find a supporting factual basis.

Judge Hammer gave three reasons supporting his rejection of appellants argument that she was entitled to withdraw her plea because Judge Bissig did not explicitly find a factual basis supporting it. First, the issue was untimely; it should have been raised in the first appeal or in the habeas proceeding. Second, a factual basis is not required for an unconditional plea. Finally, there is plenty of evidence showing that there is a factual basis for the entry of the plea in this case.

On appeal, appellant correctly acknowledges that [o]nly a conditional plea must be supported by a factual basis. It is established law that [s]ection 1192.5 imposes on trial courts the burden of inquiry into a factual basis for a guilty plea only for negotiated pleas specifying the punishment to be imposed. (People v. Hoffard (1995) 10 Cal.4th 1170, 1174.) When the plea is made without conditions, it is not subject to the requirements of section 1192.5. (Ibid.) Appellant asserts that there is a presumption that Edwards and the district attorney have entered into some form of a conditional or an implied plea bargain. As a result, she concludes that Judge Hammer erred in rejecting her factual basis challenge to the validity of the plea proceedings.

We reject this argument because appellant did not enter into a conditional plea bargain. Judge Hammer determined in the habeas proceeding that Judge Bissig had refused to accept a conditional plea. Judge Hammer found that the plea bargain negotiated by Edwards consisted of a nolo contendere plea to one count with the district attorneys recommendation for probation. The trial courts factual findings, whether express or implied, are upheld if supported by the evidence. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410.)

In this instance, Judge Hammers finding that appellant did not enter into a conditional plea bargain is supported by testimony received during the habeas hearing. Edwards testified at the habeas hearing that he negotiated a plea bargain whereby in exchange for a guilty plea to one count, with a Harvey waiver and payment of restitution, the prosecutor would dismiss the remaining charges and recommend probation to the sentencing judge. He did not negotiate a conditional plea bargain. He consistently told appellant that while it was likely that she would be granted probation, this result was not guaranteed and she could be sentenced to prison. During appellants testimony, she admitted that she recalled Judge Bissig telling her during the change of plea proceeding that the district attorney will recommend probation but she could still be sentenced to prison. She recalled answering affirmatively to Judge Bissigs question if she understood that her potential prison exposure was a maximum of five years. She recalled answering negatively to his question whether any other promises had been made to her. Appellant admitted receiving letters from Edwards informing her that it was possible she could be sentenced to serve time in jail or prison. Appellant could not point to any document guaranteeing her probation.

Furthermore, we agree with respondent and Judge Hammer that the factual basis argument should have been raised as an issue in the first appeal or in the habeas proceeding. Appellant did not argue that Judge Bissig erred by failing to find a factual basis for the plea in the first appeal or the habeas proceeding. There has been no change in the law. Appellant offered no justification for failing to raise this point in a timely manner. Accordingly, she has forfeited direct appellate review of the issue. (People v. Senior (1995) 33 Cal.App.4th 531, 538 (Senior).)

II. The misadvisement did not entitle appellant to withdraw her plea because appellant failed to demonstrate reliance on the misadvisement or prejudice.

Appellant argues that the withdrawal motion should have been granted because she would not have accepted the plea bargain if she had been correctly advised of the consequences of her no contest plea and advised of the correct interpretation of workers compensation law, and criminal law. Appellant did not develop this assertion into a coherent legal argument that is supported by authority. Perfunctory assertions of error without legal argument and citations to supporting authority are deemed to be without foundation and rejected on this basis. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20; People v. Hardy (1992) 2 Cal.4th 86, 150.)

Furthermore, appellant completely fails to acknowledge that Judge Hammer explicitly rejected her contention that she relied on Edwardss misadvisement. Judge Hammer concluded that appellants main concerns at the time she entered the plea were obtaining probation, getting the commitment of the district attorney to recommend probation and avoiding incarceration. In the absence of reliance, the misadvisement did not provide appellant with a basis to withdraw her plea. (Cf. In re Moser (1993) 6 Cal.4th 342, 352.)^[8] Judge Hammers determination that appellant did not rely on the misadvisement is reasonable and is supported by the record. Judge Hammer correctly stated that the misadvisement was not raised as an issue during the habeas proceeding. He pointed out that appellant did not mention the misadvisement in the original declaration or the supplemental declaration that she filed in support of the withdrawal motion. It was not raised during the April 24 hearing on the withdrawal motion. The first time appellant indicated her reliance on the misadvisement was in the points and authorities she filed on May 8. Judge Hammer did not find her belated averment that she relied on the misadvisement to be credible. In the exercise of its discretion the trial court may consider the defendants delay in making an application to change a plea. (People v. Caruso (1959) 174 Cal.App.2d 624, 641.)

Also, if Edwardss misadvisement is viewed as an additional incidence of ineffective assistance, it does not warrant withdrawal of the guilty plea because prejudice does not appear. It is axiomatic that to be entitled to relief, the appellant must show both ineffective assistance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) As explained above, the record does not demonstrate that appellant relied on the misadvisement. Rather, it fully supports Judge Hammers determination that appellant did not rely on the misadvisement in determining whether to accept the plea bargain. Her overwhelming motivating factor was avoidance of prison. In the absence of reliance, no prejudice resulted from the misadvisement.

III. Edwardss ineffective assistance at sentencing does not constitute a basis to withdraw the plea.

Appellant argues that Judge Hammers determination in the habeas proceeding that Edwards was ineffective at sentencing necessitates grant of the withdrawal motion. We disagree.

Ineffective assistance of counsel at sentencing does not affect validity of a plea. (People v. Barocio (1989) 216 Cal.App.3d 99, 110 [trial court erred by setting aside respondents plea of guilty solely because defense counsel was ineffective at sentencing].) Edwardss ineffective representation of appellant during appellants first sentencing hearing did not undermine the validity of her plea. Appellants plea bargain was not conditioned upon receipt of a specific sentence. There is a strong policy against permitting a defendant to gamble on the anticipated result of a plea of guilty and when disappointed in the outcome, to reestablish a right to trial. (People v. Shaver (1966) 239 Cal.App.2d 213, 218.) Therefore, [t]he fact that the defendant is disappointed in the sentence he received following a plea of guilty presents no ground for the exercise of the judicial discretion to permit the plea of guilty to be withdrawn. (People v. Caruso, supra, 174 Cal.App.2d at p. 642.)

In this instance, the appropriate remedy for Edwardss ineffective representation during the sentencing phase of the criminal proceedings was a new sentencing hearing. Appellant obtained this remedy; the remittitur was recalled, a new probation report was prepared and a new sentencing hearing was held. She was granted probation at this second sentencing hearing.

This court is acutely aware that appellant served 19 months in state prison and we are not blind to the hardships that she suffered during this period of incarceration. Appellants partial victory in the habeas proceeding and ultimate grant of probation on resentencing was in a sense pyrrhic, for no court can return to her the freedom she lost during her period of imprisonment. Nonetheless, the fact remains that Judge Hammer concluded, after receiving testimony from Edwards and appellant, that Edwards was not deficient when he recommended that she accept the plea bargain and Judge Hammer further concluded that this bargain was not conditional upon receipt of a specific sentence. Edwards testified that he never told appellant that she was guaranteed probation. The transcript of the change of plea proceeding confirms that Judge Bissig carefully explained to appellant that she could be sentenced to a maximum of five years imprisonment as a result of her plea. Judge Hammer made a credibility finding in Edwardss favor -- he accepted Edwardss testimony that he did not privately promise appellant that she would be granted probation over appellants contrary testimony. Credibility findings are the province of the trier of fact. Therefore, we conclude that Edwardss ineffective representation of appellant during the sentencing phase of the criminal proceedings did not entitle appellant to withdraw her nolo contendere plea. Appellant was entitled to, and she received, a new sentencing hearing which resulted in a more favorable outcome.

IV. Appellants assertion that the withdrawal motion was granted on May 10 is contradicted by the record.

Appellant argues that Judge Hammer originally granted her motion to withdraw [the] plea as a matter of law and that he subsequently reversed his decision. This is factually incorrect. Judge Hammer did not make a final ruling on May 10. At the May 10 hearing, Judge Hammer clearly stated that he was tentatively inclined to grant the withdrawal motion but that he would make a final ruling on the motion after additional briefing and further hearing on June 8. Judge Hammer stated:

Counsel, my intention is to delay my ruling until 1:30 on the 8th of June. Ive given you a tentative ruling. Its my intention, unless Mr. Burns changes my mind, to make a ruling as Ive indicated, and its my intention after I make a ruling to proceed to the next step.

As you indicated, Mr. Courshon, that would be a further arraignment, and if I stand by my present ruling, or a sentencing if somehow Mr. Burns can convince me to change my ruling . (Emphasis added.)

As demonstrated above, the record clearly reflects that Judge Hammer informed appellant and counsel that his ruling was tentative and subject to change after further argument on June 8. Appellant was alerted by Judge Hammer that he ultimately could decide in the prosecutors favor on this point after further argument on June 8. Appellants recollection that the court unequivocally granted the withdrawal motion on May 10 is faulty.

V. Denial of Courshons oral continuance request during the June 8 hearing was not erroneous.

A. Facts

The prosecutor conceded at the outset of the June 8 hearing that Edwards misadvised appellant that the conviction could be reduced to a misdemeanor. Edwards did not tell appellant that if she was sentenced to prison, the offense could not be reduced to a misdemeanor and expunged. The prosecutor based this admission on Edwardss testimony at the habeas hearing and a declaration Edwards filed during the habeas proceeding. Edwards testified at the habeas proceeding that he did not tell [appellant] that if youre sent to prison this crime cannot be made a misdemeanor. He only told her that if you get felony probation then it could be made a misdemeanor.

The prosecutor argued that the misadvisement did not justify grant of the withdrawal motion because appellant had not demonstrated that she relied on it when deciding whether to accept the plea agreement. During the course of the prosecutors oral argument, he referenced cases that had not been included in the points and authorities previously filed.

Courshon objected to the prosecutors failure to provide him with a copy of the transcript of the habeas hearing and to the prosecutors citation to cases that had not been included in his points and authorities. Courshon made the following request:

Order a copy of the transcript of what was said here today so I will have something in writing. [The prosecutor] was speaking very quickly and I had difficulty keeping up with his citations and the cases that he was referring the Court to, and to reschedule the matter for further briefing and further argument when Ive had a chance to respond in an effective and in a meaningful manner. Or I move to strike all of the argument that he has made regarding things that were not provided to the Court and were not provided to me as directed by the Court when we were last here.

Judge Hammer declined to defer ruling on the issue. He stated that he had continued the case several times in the past. Furthermore, the evidentiary matters were included in the hearing on the writ and Im going to deny the request to strike them from the record. Judge Hammer granted Courshon a brief recess to prepare a response to the prosecutors remarks.

B. Appellant has not demonstrated that the denial of a continuance was an abuse of discretion or that she was prejudiced.

Continuances are to be granted for good cause and the trial court has broad discretion to grant or deny a request for a continuance. (People v. Frye (1998) 18 Cal.4th 894, 1012.) When a request for a continuance is denied, the question presented on appellate review is whether the trial court abused its discretion in determining that there was no affirmative showing that the ends of justice required a continuance. [Citation.] Each case must be determined by its own particular facts. [Citation.] (People v. Wilson (1965) 235 Cal.App.2d 266, 273.) The burden is on the defendant to establish an abuse of judicial discretion and show prejudice. (Ibid.) In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. (People v. Frye, supra, 18 Cal.4th at p. 1013.)

Appellant argues that Judge Hammer erred by refusing to grant a continuance for production of the reporters transcript of the habeas hearing and of a declaration authored by Edwards. We disagree; appellant has shown neither necessity nor prejudice. The misadvisement was a belatedly raised issue. When this first issue was argued on May 10, the prosecutor was unwilling to concede that appellant had been misadvised. He requested an opportunity to review the transcript of the habeas hearing and, if necessary, obtain a declaration from Edwards concerning the claimed misadvisement. At the outset of the June 8 hearing, the prosecutor conceded that Edwards misadvised appellant about reduction of the conviction to a misdemeanor. Since the prosecutor conceded the misadvisement, production of documents designed to prove this factual point was not necessary. The question whether Edwards misadvised appellant had been established by concession. The hearing proceeded to the question of reliance/prejudice, an issue that had been briefed by both parties prior to the June 8 hearing.

Furthermore, appellant, Courshon, the prosecutor and Judge Hammer were all present during the habeas hearing. A copy of the reporters transcript of the habeas hearing is part of the appellate record. Appellant has not demonstrated that her testimony or Edwardss testimony during the evidentiary hearing would have established that she relied on the misadvisement in deciding to accept the plea bargain. Similarly, she has not demonstrated that a declaration filed by Edwards would have established reasonable reliance. Thus, appellant has not demonstrated that justice required grant of a continuance to obtain these documents or that she was prejudiced by their absence.

Appellant also challenges the courts refusal to grant a continuance so Courshon could prepare a response to the authorities orally cited by the prosecutor during his argument on June 8. Appellant failed to demonstrate that a continuance was necessary to permit Courshon to adequately respond to the prosecutors argument that she was not prejudiced by the denial of Courshons continuance request. The parties were provided with an opportunity to research the applicable legal points before the June 8 hearing and to submit written briefing; both parties availed themselves of this opportunity. The prosecutor did not advance new and unexpected legal theories during his oral argument. The prosecutor simply expanded on the arguments contained in his written points and authorities. Courshon acknowledged that he was aware of the applicable legal standard. Judge Hammer briefly recessed the hearing to permit Courshon to collect his thoughts and prepare a response to the prosecutors oral comments. Appellant has not demonstrated that Courshon failed to present a competent argument on her behalf.^[9]

In sum, appellant did not establish the necessity or usefulness of a continuance and she did not demonstrate prejudice. Denial of the continuance request did not infringe her constitutional rights to due process and the effective assistance of legal counsel.

VI. Appellant waived direct appellate review of Edwardss effectiveness prior to sentencing by failing to raise these claims during her first appeal.

As previously mentioned, appellant has filed a petition for writ of habeas corpus in this court challenging Edwardss effectiveness (In re Charlotte Chapman, No. F050911), which currently is pending. She also argues in this direct appeal that Judge Hammer should have granted the withdrawal motion because Edwards was ineffective when she entered the plea. She contends that Edwards incorrectly advised her about workers compensation and criminal law and that he was grossly ineffective for not informing her of the consequences resulting from the superior courts policy not to entertain conditional pleas. We agree with respondent that appellant forfeited direct appellate review of these claims by failing to raise them during her first appeal. The propriety of Judge Hammers ruling in the habeas proceeding will be considered by this court in the context of the pending writ of habeas corpus.

In Senior, supra, 33 Cal.App.4th 531, the court concluded that a defendant is prohibited from raising contentions in a piecemeal fashion by successive appeals attacking the validity of the underlying judgment. A defendant may not belatedly raise an issue in a later appeal that was not presented in the first appeal, absent good cause. [W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay. (Id. at p. 538.) This rule applies when all of the following has been shown: (1) the issue was ripe for decision at the time of the previous appeal; (2) there has not been a significant change in the facts or law; and (3) the defendant has not offered a reasonable justification for the delay. (Ibid.; see also People v. Murphy (2001) 88 Cal.App.4th 392, 395-396.)

During the first appeal, appellant argued that Edwards was ineffective for failing to prevent the trial court from relying on inappropriate factors in denying her probation. Yet, she did not challenge the validity of her plea. She did not argue that Edwards was ineffective during pretrial proceedings or that the plea was the product of his deficient representation. Edwardss effectiveness prior to sentencing was ripe at the time of her first appeal. There has been no change in the law. Appellant offered no justification for failing to raise this claim in her first appeal. Appellant could have challenged Edwardss effectiveness during the first appeal. Having failed to do so, she has forfeited direct appellate review of the issue. (Senior, supra, 33 Cal.App.4th at p. 538.)

DISPOSITION

The judgment is affirmed.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Wiseman, Acting P.J.

_______________________________

Gomes, J.

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^[1] Appellant also has filed a petition for writ of habeas corpus in this court (In re Charlotte Chapman, No. F050911), which currently is pending.

^[2] Unless otherwise specified, all statutory references are to the Penal Code.

Recitation of the factual circumstances giving rise to the charged offenses is not necessary to resolution of the issues presented in this appeal.

^[3]People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

^[4] On its own motion, this court takes judicial notice of the appellate record and opinion in People v. Chapman, No. F043274. (Evid. Code,  452, subd. (d).)

^[5] Courshon was one of the attorneys who represented appellant during the first appeal. Appellant is prosecuting this appeal in propria persona.

^[6] Henceforth, unless otherwise noted all dates refer to 2006.

^[7] Appellant asserts that the misadvisement was first raised in points and authorities filed on April 14. This is incorrect; it was not raised in any of the documents appellant filed on that day. Judge Hammer correctly determined that the misadvisement was first raised as a basis to withdraw the plea in the points and authorities filed on May 8.

^[8] Appellant does not contend that Judge Hammer failed to apply the correct legal standard or that he erred as a matter of law by concluding that both subjective and objectively reasonable reliance on the misadvisement must be proved before appellant is entitled to withdraw her plea on this basis.

^[9] Also, respondent correctly points out that appellant did not provide any legal support for her assumption that the court is prohibited from considering supplemental citations orally provided by counsel during a hearing or authority demonstrating that the citation of additional authorities provides a valid basis for grant of a continuance. Perfunctory assertions of error without legal argument and citations to authority are insufficient and the claim of error is deemed without foundation and waived. (People v. Rodrigues, supra, 8 Cal.4th at p. 1116, fn. 20; People v. Hardy, supra, 2 Cal.4th at p. 150.)