P. .v
Filed 4/2/13 P. .v Jackson CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BERNARD JACKSON,
Defendant and Appellant.
B239857
(Los Angeles
County
Super. Ct.
No. MA053381)
THE COURT:
name="_ftnref1" title="">*
Appellant
Bernard Jackson (Jackson) appeals
from his conviction following a plea of no contest on two counts of
violation of Penal Code section 69.
name="_ftnref2" title="">[1] His appointed counsel filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d
436 (Wende) and advised us that he
could not identify any appellate issues.
Subsequently, on August 20,
2012, we notified Jackson
that he had 30 days within which to identify any issues he wishes us to
consider. He filed a supplemental brief
on September 19, 2012. Soon after, his attorney filed a
to include the reporter’s transcript from the hearings on September 29, 2011, October 21, 2011, and October 31, 2011.
We granted that motion. Jackson
filed a second supplemental brief on January
14, 2013.
The
probation report indicates that on July
11, 2011, Jackson
attended a family gathering at his mother’s home. He was supposed to leave and spend the night
elsewhere. After he left, his mother
locked all the doors. Jackson
then returned and kicked in the back door.
He held a sword and stood in a threatening manner. His mother called local emergency
services. Sheriff’s deputies responded
to the scene. Jackson
turned over the sword. But then, while
he was being searched, he became angry and aggressive. He broke away and stood in a combative
stance. He told the deputies, “Let’s go,
just fucking shoot me[,] man.†The
deputies used a taser on Jackson. He tried to run away four times.
In case No.
MA053381, Jackson was charged with five counts of resisting an executive
officer (§ 69) (counts 1-5); one count of exhibiting
a deadly weapon (§ 417, subd. (a)) (count 6); and one count of vandalism
under $400 (§ 594, subd. (a)) (count 7).
As to counts 1-5, it was alleged that Jackson
suffered four prior convictions of serious or violent felonies within the
meaning of section 1170.12, subdivisions (a) through (d) and section 667,
subdivision (b) through (i). Also, he
suffered a prior prison term pursuant to section 667.5, subdivision (b).
On September 27, 2011, Jackson
appeared for a hearing. Judge Hayden
Zacky informed Jackson that he had
been sentenced to three years in state
prison in case
No. LA066717, but execution of the sentence was suspended and he was on
probation. Because of case No. MA053381,
the three-year sentence in case No. LA066717 would have to be imposed. The district attorney made the following
offer. If Jackson
pleaded to one of the felony counts in case No. MA053381 and admitted a strike
prior, he would receive 32 months in state prison. The three years for case No. LA066717 would
be imposed but run concurrently. Jackson
said he did not want to take the deal.
The trial court asked defense counsel, Lyall Beggs, if he was ready for
trial. Mr. Beggs said he was waiting for
discovery of a use of force videotape.
Judge Zacky then asked if Jackson
would waive his speedy trial rights. He said he did not want to. He made an oral motion pursuant to
counsel. According to Jackson,
Mr. Beggs called him a “nigger†and they had an extreme conflict of
interest. Judge Zacky held a hearing and
denied the motion. Once again, Judge
Zacky asked if Jackson would waive
his speedy trial rights. Jackson said
no.
On
September 29, 2011, Mr. Beggs said he asked the sheriff’s department for the videotape
and was told to file a motion. Judge
Zacky said he would have to hold a hearing and it would take a while. He asked Jackson if he would waive time so
his lawyer could have the videotape at trial.
According to Judge Zacky, the videotape could exonerate Jackson. Jackson said he would not agree to waive
time. Judge Zacky made a finding of good
cause to continue the last day for trial.
He said that October 28, 2011, would be the last day. On October 21, 2011, Mr. Beggs indicated that
he had filed a motion to obtain the videotape from the sheriff’s
department. To have time for the motion
to be heard, he asked for a good cause continuance of the last day for
trial. Judge Zacky granted it. As a consequence, the last day for trial was
continued to
November 18, 2011. But then Judge Zacky
reconsidered in light of Jackson’s objection.
Ultimately, Jackson waived time until 10 days from October 31, 2011, so
the district attorney’s office could consider a counteroffer made by Jackson
for a plea agreement.
On November 1, 2011, Jackson made a
second oral Marsden motion to relieve
Mr. Beggs as counsel. As before, the
motion was denied.
On November
7, 2011, Jackson appeared in case No. MA053381 and case
No. LA066717 before Judge Charles A. Chung.
Judge Chung told Jackson that the district attorney’s office was
offering three years on case No. MA053381 and to strike every strike. Jackson would be eligible to earn good
time/work time credits. If Jackson
rejected the offer, the district attorney’s office would proceed on all the
strikes. As a result, Jackson was facing
25 years to life on each of the five felony counts, which meant that he was
facing a total of 125 years to life plus more time on prison priors. Judge Chung said that the county-wide conviction
rate was about 85 percent on felonies, and that the rate tended to be higher in
Lancaster, which was where the trial would be.
He asked if Jackson wanted to take the deal. Jackson said that he did not. But after speaking to Mr. Beggs, Jackson changed
his mind and accepted. Judge Chung
clarified that Jackson would plead no contest to count 1 and 2.
Judge Chung
ordered Jackson to serve the previously imposed three-year term in case No.
LA066717. On case No. MA053381, Judge
Chung sentenced Jackson to three years for count 1 and three years for count
2. The sentences for all of the cases
were ordered to run concurrent. Finally,
Jackson was given total credit of 242 days.
Jackson
filed a motion to vacate his plea. He
was represented by Leo B. Newton.
According to the motion, Jackson was intimidated into accepting the plea
agreement when Judge Chung identified the maximum exposure and provided
statistical information about convictions in felony matters in Los Angeles
County and Lancaster. In addition,
Jackson claimed that he accepted the plea agreement because Mr. Beggs said that
he had done nothing to prepare for a jury trial in the case. The motion was denied.
Jackson
requested a certificate of probable cause to challenge the denial of his motion
to vacate his plea. Judge Chung signed
the certificate of probable cause. Jackson filed a notice of appeal on March 8,
2012, indicating that he was challenging the validity of his plea. On April 10, 2012, Jackson filed an amended
notice of appeal in which he stated that the appeal challenged the validity of
the plea, and that it was also based on the sentence or other matters occurring
after the plea that do not affect the validity of the plea. He obtained a certificate of probable cause
to challenge the denial of the motion to withdraw plea, Judge Chung’s failure
to provide presentence credit that Jackson earned in case No. LA066717, Judge
Zacky’s denial of Jackson’s speedy trial rights, and Judge Zacky’s denial of
the Marsden motions.
According
to Jackson, he is entitled to reversal because he received ineffective
assistance of counsel from Mr. Beggs and Mr. Newton; Judge Zacky was biased;
Judge Zacky violated his right to a speedy trial; Judge Chung coerced the plea;
and the prosecutor withheld evidence.
Neither the record nor Jackson’s arguments demonstrate
the existence of any cognizable issues on appeal. (Wende,
supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
P. J., ASHMANN-GERST, J., CHAVEZ, J.
further statutory references are to the Penal Code unless otherwise indicated.
