P. v. Goodwin
Filed 8/22/12 P. v. Goodwin CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Prenell Goodwin,
Defendant and Appellant.
B239872
(Los Angeles
County
Super. Ct.
No. PA071556)
APPEAL from
a judgment of the Superior Court
of
County, Beverly Reid O’Connell, Judge. Affirmed.
California
Appellate Project and Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Prenell
Goodwin appeals from the judgment entered following his plea of no contest to
Code, § 11350, subd. (a)) and his admission that he previously had been convicted
of a serious or violent felony pursuant to the Three Strikes law (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Goodwin to 32
months in prison. We affirm.
FACTUAL AND PROCEDURAL HISTORY
1. Facts.
At approximately
12:35 p.m. on September 27, 2011, Los Angeles County Deputy
Sheriff Joseph Cerda was on duty in the area surrounding San
Fernando Road and Penrose
Street. As
the deputy walked by, he observed defendant and appellant, Goodwin, sitting in
the passenger seat of a “red/maroon” Ford Contour. The deputy was on the driver’s side of the
vehicle when he then saw Goodwin “toss[] a plastic bag, tied at one end, behind
his passenger seat.” Deputy Cerda took a
closer look and saw on Goodwin’s lap and the car’s seat “several off-white
rock-like substances resembling rock cocaine.”
Cerda had Goodwin get out of the
car and the substance which had been on his lap fell onto the passenger
seat. Cerda “collect[ed]” the substance
and booked it into evidence. Cerda, an
experienced narcotics officer, indicated
that the amount collected, 0.07 grams, is a “usable quantity of cocaine
base.”
2.
Procedural history.
In an information filed November 30, 2011, Goodwin was
charged with one count of possession of a controlled substance, cocaine, in
violation of Health and Safety Code section 11350, subdivision (a). It was further alleged pursuant to Penal Code
sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the
Three Strikes law, that Goodwin previously had suffered three serious or
violent felony convictions, one for first degree burglary and two for assault
with a deadly weapon. It was also
alleged pursuant to Penal Code section 667.5, subdivision (b), that Goodwin had
been convicted of nine offenses for which he served prison terms.
At proceedings held on November 30, 2011, Goodwin pleaded
not guilty to count 1 and denied all the special allegations.
On January 10, 2012, the trial court indicated that the
People had conveyed an offer of the low term, doubled, or 32 months. Defense counsel indicated that Goodwin wanted
the court to “consider giving [him] a program.”
The trial court had read and considered the probation report and agreed
that the amount of narcotic involved was “very small.” However, Goodwin’s criminal history, which
could only be described as “a long and varied” one, was a problem. Goodwin’s files showed that, at least three
of his prior convictions were for serious or violent felonies. In addition, Goodwin had multiple convictions
for narcotics offenses. In view of these
prior convictions, the trial court indicated that Goodwin had three
options: “To accept the People’s offer
of [the low term] doubled, presumptive second strike, which would be [32
months], or you can go to trial or you can plead open with no promises, and I
will hear whatever you have to say.” The
trial court indicated that, if Goodwin took the option of pleading for a term
of 32 months that the court would “recommend a drug program in the prison
system . . . so [he would] get the drug treatment that [he] desire[d].” When Goodwin asked if he could be housed in
the county jail, the trial court indicated that he could not. “[B]ased on [his] prior conviction for a
serious or violent felony[,] [t]he law
[would] not permit [him] to be housed in the Los Angeles County Jail for the
duration of [his] sentence.” “[O]nce
[he] went to the prison [he] would [serve his sentence] at 80 percent.”
Several days later, on January 13, 2012, Goodwin informed
the trial court that he wished to go to trial and that his family was going to
retain private counsel. The trial court
indicated that, if private counsel were retained, “that person [would need] to
appear.” The court continued, “I can’t
continue a matter just because there is a desire or an effort to get you
private counsel, because as you may well imagine, many times private counsel
never shows up. [¶] So [your present counsel] will remain to represent
you.” Goodwin then asked for a
hearing.
After the prosecutor left the
courtroom, Goodwin indicated that his counsel had “called [him] a liar.” Goodwin continued, “She tells my brother I
cussed her out. I never, ever
disrespected this woman, and nor [will] I ever . . . .” Goodwin indicated that his counsel “act[s]
snotty” and refuses to tell him what she is doing with regard to his case;
whether she is filing a motion or “whatever.”
Goodwin stated that they “signed a Proposition 36 and then all of a
sudden [he was] not eligible for it . . . . [¶]
She’s telling me different things right now, and she said ‘I don’t
believe nothing you’re saying.’ ”
Goodwin indicated that there was “no way” he could go to trial with his
present counsel representing him. He had
asked her to make some discovery motions and nothing had been filed. She had never even given him a card with her
phone number on it and she had not called him.
The only times he had seen her were immediately before court appearances. Goodwin indicated that he felt as though his
“rights ha[d] been violated.”
With regard to the fact that he
wished to enter a plea pursuant to Proposition 36, the trial court
informed Goodwin that he was not eligible as a matter of law; “[i]t would never
happen.”
Defense counsel indicated that, at
one point in the proceedings, she had made a note in her file indicating that
she thought Goodwin might be eligible for treatment under Proposition 36. However, since Mr. Goodwin refused to waive
time so that counsel could determine whether he had been out of prison for five
years, that option was not feasible.
Later, counsel again decided to investigate whether Mr. Goodwin was
eligible for Proposition 36 treatment.
This time, however, the district attorney informed her that, not only
would he not strike any of Goodwin’s Three Strikes priors, but that Goodwin had
been in prison in 2008, which was less than five years earlier. He was “[t]hereby render[ed] . . . ineligible
for [treatment under] Proposition 36 as a matter of law.”
With regard to motions, counsel
“didn’t see the need to do a Romero”
and she “didn’t see a [motion to suppress evidence].”
After informing Goodwin of some
case law, the trial court addressed him and stated: “I find that [defense counsel] just doesn’t
have to just agree with you because she represents you. She uses her best judgment and her training
and experience to bring motions. She is
entitled to disagree with you about the case.
She is entitled to disagree with you about the motions to bring. [¶] So
you have not stated sufficient grounds for firing [your counsel]. [¶] So
your Marsden motion is denied.”
Ten days later, on January 23,
2012, the matter was set to go to trial.
The People, however, indicated that the offer, double the low term, or
32 months, was still open. The trial
court then addressed Goodwin. The court
stated: “As you know, with your record,
you face life in prison, period. This is
actually a fourth strike case[.]” “[I]f
you are convicted and the prior serious felonies and prior state prison priors
are found to be true, . . . you’re exposed to a lot, a lot of
time. And there’s no guarantee that
[the] judge who hears your case . . . would strike any of the prior serious
felonies. [¶] Do you understand” Goodwin responded, “Yes.”
After again consulting with his
counsel, Goodwin indicated that he wanted a trial. He was rejecting the offer because he
“need[ed] a program.” He did not “need
prison.”
On January 30, 2012, defense
counsel indicated that she was ready for trial.
Goodwin had then told the trial court that he wished to go
in propria persona. After the
trial court indicated that Goodwin’s request to represent himself had not been
timely, Goodwin indicated that he had retained private counsel. However, Goodwin’s counsel had called
retained counsel that morning and received a voice mail. Although counsel had explained that they were
ready for trial and that retained counsel should call the court, retained
counsel had neither called nor made an appearance. The trial court indicated that trial would
begin the following day with Goodwin’s current defense counsel.
The following day, Goodwin
indicated that he had changed his mind and wished to do the low term in state
prison, doubled to 32 months, with a drug program in the prison.
After a brief recess, the court
addressed Goodwin and stated: “I have in
my hand a pink felony advisement of rights, waiver and plea form. It appears to have your initials in the boxes
along the right. It also appears to be
signed by you indicating that you freely and voluntarily wish to plead no
contest to count 1, admit your prior conviction for a serious or violent
felony, receive the low term of 32 months prison where I will declare you to be
an addict and you will be provided a drug treatment program in the prison
facility. [¶] Is that your understanding of the
agreement” Goodwin responded, “Yes.”
The trial court advised Goodwin of
his right to be represented by counsel, his right to a trial by jury, his right
to confront and cross-examine the witnesses against him, his right to use the
subpoena powers of the court at no cost and his privilege against
self-incrimination. The court informed
Goodwin that he would be required to pay a $240 victim restitution fine (Pen.
Code, § 1202.4, subd. (b)), a $50 laboratory fee (Health & Saf. Code, §
11372.5), a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), a
$30 criminal conviction fee (Gov. Code, § 70373) and a stayed $240 parole
revocation restitution fine (Pen. Code, § 1202.45). Goodwin then pleaded no contest to count 1,
possession of a controlled substance on or about September 27, 2011, and
admitted that he previously had been convicted of a “serious or violent felony
on or about October 15, 1985, first degree burglary.” The trial court accepted the plea, adjudged
Goodwin guilty of count 1 and found the admission to the prior serious or
violent felony to be true.
The trial court, in accordance with
the agreement of the parties, sentenced Goodwin to 16 months in state prison,
then doubled the term to 32 months “based upon the defendant’s admission of a
prior conviction to a serious or violent felony for a total term of . . . 32
months in state prison[.]” Goodwin was
awarded presentence custody credit for 127 days actually served and 127 days of
good time/work time, for a total of 254 days.
The court declared Goodwin an addict and recommended that he receive
“narcotic addiction treatment in the state facility.” Finally, on the People’s motion, the court dismissed
all remaining counts and allegations.
(See Pen. Code, § 1385.)
Goodwin filed a timely
After examination of the record,
counsel filed an opening brief which raised no issues and requested this court
to conduct an independent review of the record.
By notice filed May 29, 2012, the clerk of this court advised Goodwin to
submit within 30 days any contentions, grounds of appeal or arguments he wished
this court to consider. On July 2,
2012, Goodwin submitted a letter brief in which he asserted that he was mislead
into accepting a plea bargain for 32 months in prison when he is eligible for
probation and treatment pursuant to Proposition 36.
Proposition 36, which was adopted
by the voters in the November 2000 election, provides for probation and drug treatment
for certain nonviolent drug offenders.
It, however, “excludes from the program other offenders . . . who have
previously committed serious or violent felonies and have not remained free of
prison custody for five years.” (
1135; see Pen. Code, § 1210.1, subd. (b)(1).) Here, Goodwin had admitted having been
convicted of a “serious or violent felony on or about October 15, 1985, first
degree burglary.” In addition, it was
determined by the prosecutor that Goodwin had been serving time in prison in
2008, less than five years before the present offense. Finally, in the information filed in the
present matter, it was alleged that Goodwin had been convicted of three serious
or violent felonies: first degree burglary
and two assaults with a deadly weapon, and that he had been convicted of, and
served prison terms for nine offenses pursuant to Penal Code section 667.5,
subdivision (b).
title="">[3] Under these circumstances, Goodwin is simply
not eligible for treatment under Proposition 36.
Although Goodwin’s counsel had
hoped otherwise, the trial court and the prosecutor were correct in their
conclusion that Goodwin was not eligible for Proposition 36 treatment as a
matter of law and they so informed him.
After the prosecutor informed her that Goodwin had been in prison in
2008, even his own counsel informed him that he was not eligible for the
program. Under these circumstances,
Goodwin cannot complain that he was “mislead” into taking the plea agreement.
We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
KLEIN,
P.J.
We
concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">
name="_ftn2" title="">
13 Cal.4th 497.)
