P. v. Featherstone



















Filed 1/11/13 P.
v. Featherstone CA3

Opinion following order vacating prior
opinion











NOT TO BE PUBLISHED











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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Butte)

----






>

THE PEOPLE, Plaintiff and Respondent, v. JAMES RICHARD FEATHERSTONE, Defendant and Appellant.

C070687 (Super. Ct. No. CM034944)

Appointed
counsel for defendant James Richard Featherstone asked this court to review the
record to determine whether there are any arguable
issues on appeal. (>People v. Wende (1979) 25 Cal.3d
436 (Wende).) Finding no arguable error that would result
in a disposition more favorable to defendant, we will affirm the judgment.

I

Counsel
stipulated that the probation report would provide the factual basis for
defendant’s plea. According to the
probation report, a California Highway Patrol officer was alerted that
defendant displayed signs of intoxication before leaving Gold Country Casino in
his sport utility vehicle. The officer
observed defendant’s vehicle swerve four times and conducted a traffic
stop. Defendant smelled of alcohol, his
speech was slurred, his face was flushed, and his eyes were red and
watery. He admitted consuming three
beers. Defendant failed a field sobriety
test and a breath test indicated that he had a blood alcohol content of 0.18 or
0.19 percent.

Defendant
pleaded no contest to driving under the influence of alcohol (Veh. Code, §
23152, subd. (a) -- count 1), and admitted seven prior prison terms, in
exchange for dismissal of the remaining counts and allegations with a >Harveyhref="#_ftn1" name="_ftnref1" title="">[1] waiver. The trial court
denied defendant’s motions to withdraw his plea and to discharge appointed
counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)

The
trial court sentenced defendant to 10 years in county jail (three years for
driving under the influence, plus seven years for the prior prison terms),
awarded defendant 434 days of presentence custody credit (217 actual days and
217 conduct days), and imposed a $2,000 restitution fine (Pen. Code,
§ 1202.4, subd. (b)), a fine of $1,747 (Pen. Code, § 672), a $50
alcohol education fee (Veh. Code, § 23645, subd. (a)), a $40 court
operations assessment (Pen. Code, § 1465.8), a $30 criminal conviction
assessment (Gov. Code, § 70373), and a $736 presentence investigation
report fee (Pen. Code, § 1203.1b).

II

Appointed
counsel filed an opening brief
setting forth the facts of the case and asking this court to review the record
and determine whether there are any arguable issues on appeal. (Wende,
supra, 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a href="http://www.fearnotlaw.com/">supplemental brief within 30 days of the
date of filing the opening brief.

Defendant
filed a supplemental brief stating:

“Defendant
has had conflict with trial counsel Jesus Rodriguez in past cases where he was
appointed counsel by Butte County. (CM030736, CM025113) Marsden
motion was filed in the past. Defendant
believes Rodriguez should never have been apointed [sic], or Rodriguez should have denied appointment due to
conflict. Defendant filed in a timely
manner, both a motion to withdraw plea, and a motion for substitution of
counsel, because of court appointed counsel’s lack of vigorous defense which
caused defendant to receive the maximum sentence allowed by law on a
so[-]called plea agreement. Defendant
wishes the court to see if Missouri> v. Frye No. 10-444 cite as 566 U.S.
(2012) [sic] and Lafler v. Cooper No. 10-209 cite as 566 U.S.
(2012) [sic] are relevant to this
appeal.

“Under
the uniform sentencing under the equal
protection grounds of the Judicial Council, why was I denied dismissal of
prior prison terms due to ‘Realignment’ AB 109?

“Defendant
also feels that Butte County has waged a vendetta against him because of his filing of a federal
1983 civil rights claim against the Calif[ornia]
Depart[ment] of Corrections, where Butte Co[unty] was named as co-respondent
because of being housed at Butte Co[unty] Jail.
The trial court appointed Jesus Rodriguez as counsel while this was
being filed (2007)[.]

“Defendant
feels that there are just too many conflicts of interest that warrant a claim
of ineffective assistance of counsel in this case.”

Defendant asks us to examine not
only the appellate record in this case, but also a habeas corpus petition he
previously filed with this court.

Defendant’s claims involving his
trial counsel were largely addressed and rejected by the trial court in a
hearing on defendant’s Marsden
motion. During that hearing, defendant
asserted that trial counsel had been appointed in a prior case and defendant
“attempted” a Marsden motion but had
been persuaded by the trial court to withdraw the motion because defendant had
an outstanding habeas corpus petition.
In defendant’s view, that history between them should have prompted
trial counsel to recuse himself or declare himself disqualified. Defendant also asserted that trial counsel
failed to raise available defenses before negotiating the plea agreement with
the prosecutor.

Trial counsel responded that he did
not view his prior history with defendant as creating a conflict in the present
case, and defendant did not indicate prior to his Marsden motion in the instant case that trial counsel should not
take the case for that reason. Trial
counsel acknowledged that he and defendant had some disagreements about this
case, but he did not believe the disagreements rose to the level of a conflict
of interest.

Trial counsel also explained that
based on the evidence and allegations in this case, he thought the best
strategy was to negotiate a plea agreement dismissing as many priors as
possible.href="#_ftn2" name="_ftnref2"
title="">[2]


The trial court found that counsel
had provided proper representation and there was no breakdown in the
attorney-client relationship.
Accordingly, the trial court denied defendant’s Marsden motion and also denied defendant’s pro se motion to
withdraw his plea.

Defendant does not explain why he
thinks the trial court’s rulings were erroneous. We have independently reviewed the matter,
however, and we find no arguable error.

Defendant claims his trial counsel
was ineffective because defendant received the maximum sentence possible under
the plea agreement. But a sentence
within the terms of the plea agreement is not unduly harsh. Having freely accepted the benefits of the
agreement negotiated for him by defense
counsel -- including the dismissal of certain counts and enhancement
allegations -- defendant may not now claim the agreement was unfair.

The contention that the remaining
prior prison term allegations should have been stricken under realignment is
incorrect. Realignment does not require
elimination of the prior prison term allegations in this case. (Pen. Code, § 1170, subd. (h).) Defendant’s references to “uniform
sentencing” and “equal protection” do not change our conclusion.

Defendant asserts Butte County has a
vendetta against him, but the record does not show arguable error in that
regard. In fact, the record on appeal
does not include information regarding the federal lawsuit referenced by
defendant, and it does not include any information regarding county actions in
response to that lawsuit.

We decline defendant’s request that
we consider his habeas corpus petition as part of this appeal. Appellate review is generally confined to matters
in the appellate record. Defendant does
not explain, and our independent review
does not indicate, how the habeas corpus petition could assist us in resolving
this appeal.

Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.

DISPOSITION

The
judgment is affirmed.









MAURO , J.





We concur:





BLEASE , Acting P. J.





HULL , J.