P. v. Colbert
Filed 5/7/08 P. v. Colbert CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. KENNETH KIRK COLBERT, Defendant and Appellant. | D051342 (Super. Ct. No. SCD203148) |
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Kenneth Kirk Colbert entered a negotiated guilty plea to one count of possession of cocaine base for sale. (Health & Saf. Code, 11351.5.) As part of the plea, Colbert admitted the applicability of three Health and Safety Code section 11370.2, subdivision (a) enhancements, and five prison priors (Pen. Code, 667.5, subd. (b)). As Colbert recognized in a plea form and in a preplea colloquy with the trial court, the guilty plea exposed him to a maximum prison term of 19 years in prison and a $20,000 fine.
After exercising its discretion to strike the three Health and Safety Code section 11370.2 enhancements (see People v. McCray (2006) 144 Cal.App.4th 258, 267), the trial court rejected the prosecution's recommendation of a 19‑year prison term and sentenced Colbert to eight years in prison, the lower term of three years for the offense plus an additional five years for the five prison priors.
FACTS[1]
On November 30, 2006, San Diego Police Officer Luke Johnson conducted a parole search of Colbert and his residence. Johnson discovered approximately $160 in Colbert's pants pocket, and 6.21 grams of cocaine base in "one large chunk" in a tissue box on a desk in Colbert's room. Johnson also found razor blades, a box of clear plastic baggies (which are "common packaging for . . . cocaine base"), as well as an additional $69 in one dollar bills in the top drawer of Johnson's desk. Based on "the large quantity, the manner that [the cocaine] was wrapped in," the cash, razor blades and "large amount of packaging," Johnson formed the opinion that the cocaine was intended for sale.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether Colbert's plea was constitutionally valid (see Boykin v. Alabama (1969) 395 U.S. 238, 244); and (2) whether Colbert was properly advised that he could receive an eight‑year sentence under the plea agreement.
We granted Colbert permission to file a brief on his own behalf. After requesting an extension, Colbert filed a supplemental brief in which he contends that he was mentally incompetent at the time of his guilty plea and, consequently, his trial counsel was ineffective for failing to request, and the trial court erred by not sua sponte ordering, a competency hearing. In addition, Colbert contends that his plea was involuntary because he was given bad advice by his attorney and did not have sufficient time to consider the plea. We address each of these contentions below. (See People v. Kelly (2006) 40 Cal.4th 106, 110.)
First, we reject the contention that the trial court erred in failing to conduct an inquiry into Colbert's competency.
"As a matter of due process, the state may not try or convict a mentally incompetent defendant." (People v. Ramos (2004) 34 Cal.4th 494, 507.) Nevertheless, "[a] defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence." (Ibid.; Pen. Code, 1369.)
In the instant case, the record does not reflect any indication that Colbert was incompetent during the trial court proceedings, and consequently, the trial court cannot be faulted for failing to sua sponte order an inquiry into Colbert's competency.[2] (People v. Alfaro (2007) 41 Cal.4th 1277, 1303 [holding that "[t]he trial court had no duty to inquire further into defendant's competence" where counsel did not raise issue and "defendant did not provide any indication that she was incompetent"]; Pen. Code, 1368.)
With respect to the claim of ineffective assistance of counsel (regarding competency or otherwise), Colbert's contention lacks any support in the appellate record. To the extent the claim (or any of Colbert's other contentions) rests on evidence that is outside the appellate record, it must be raised, if at all, in a petition for habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where claim of ineffective assistance of counsel depends on matters outside the record, it "is more appropriately decided in a habeas corpus proceeding"]; In re Paul W. (2007) 151 Cal.App.4th 37, 68 ["A petition for habeas corpus is proper where the claims will require consideration of matters outside the appellate record"].)
Finally, there is no support in the record for Colbert's contention that his plea was not knowing and voluntary. Colbert signed a plea form containing the substance of the plea agreement and initialed each of the constitutional rights he was giving up by agreeing to the plea. The trial court conducted an oral colloquy with Colbert reaffirming that Colbert was giving up his rights, and confirming the knowing and voluntary nature of the plea. Given the record of this inquiry, the plea must be considered knowing and valid on appeal. (See People v. Panizzon (1996) 13 Cal.4th 68, 83.)
Separate and apart from Colbert's contentions, we have also conducted a review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel. Our review has disclosed no reasonably arguable appellate issues. Competent counsel has represented Colbert on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McDONALD, Acting P.J.
O'ROURKE, J.
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[1] The facts are taken from the preliminary hearing transcript that the parties stipulated provides a factual basis for the plea.
[2] Colbert asserts that he informed the trial court "that he lacked both . . . mental ability and educational ability" at a hearing on December 13, 2006. At a Marsden hearing on that date, Colbert, in explaining difficulties he was having with his attorney, informed the court that he was, at one time, "diagnosed as educationally handicap." This statement, in the context of a Marsden hearing where Colbert lucidly explained his concerns with his attorney, was not sufficient to require the trial court to order a competency hearing. (See People v. Marks (2003) 31 Cal.4th 197, 215 [explaining that a defendant is mentally incompetent "if 'as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner' "]; People v. Jones (1991) 53 Cal.3d 1115, 1152 [trial court required to hold competency hearing if record discloses evidence raising "a reasonable doubt about the defendant's competence to stand trial"].)
