P. v. Johnson

Filed 1/6/10 P. v. Johnson CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Defendant Dana Ray Johnson pleaded no contest to sale of marijuana (Health & Saf. Code,  11360, subd. (a)) in exchange for an agreement that he would be placed on probation and receive 90 days in jail and a recommendation that the jail sentence could be served on county work project. Following his plea, defendant brought a Marsden[1] motion, seeking to have his appointed attorney relieved and to substitute alternate counsel. Defendants motion was denied. The trial court sentenced defendant in accordance with the plea agreement.

According to the probation report and the factual basis stated by defendant at the time of his plea, the charge stemmed from an incident in which an undercover police officer asked defendant if he had any marijuana, and defendant replied he did not but his boy ha[d] some. Defendant left, returning shortly thereafter with the codefendant, who sold the officer three-quarters of a gram of marijuana.

Defendant appealed, and his request for a certificate of probable cause was granted.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, in which he claims his trial attorney failed to act competently by failing to file unspecified motions requested by defendant. He also maintains his trial attorney failed and/or ignored [his] claim/defense, thereby leaving [him] to [ac]cept the negotiated plea [b]argain.[2]

Prior to his plea, defendant sent his trial counsel a letter with his version of the circumstances leading to the purchase of the marijuana by the undercover officer, claiming he did nothing to aid in the sale and outlining how officers coerced him into signing a paper, presumably containing his confession.[3]

After his plea, defendant sent his trial attorney another letter asserting the following: (1) the attorney told him that his version of events would do our defense no good because it was irrel[]evant; (2) his attorney told him there was no need to suppress evidence because defendant had no evidence seized from [his] person; (3) with regard to his statement to the police, his attorney agree[d] it was taken in violation of Miranda[4] but told him that the officer could take the stand and say that he gave you your Miranda and that[]s it; and (4) his attorney made him incriminate himself by having him admit in court (presumably, at the time of his plea) that he put two people together to make the exchange.

Defendant sent a letter to the trial court stating that his trial counsel had agreed but failed to file a motion to suppress his statement to the police, which he maintained was obtained by coercion and despite his request for counsel. In the letter, defendant maintained that, instead of filing the motion, his attorney informed [him] of [acc]epting the plea or else [he] was going to go away for a long time, and that the jury [wa]s going to look at [his] juvenile case(s) and automatically convict [him] even if [he] took the stand, which was why he took the plea. Defendant also complained that his attorney made him incriminate himself in open court at his plea hearing, and that the court found him guilty based on his admission. In addition to his letter to the court, defendant filed a motion to relieve his appointed attorney, setting forth similar claims.

The trial court held a Marsden hearing, at which it asked defendant to state specifically his complaints about his attorney. Defendant replied: [W]hen I was telling [the attorney] about how I didnt do nothing . . . , he said I was going to lose the case anyway it go [sic]. He briefly explained his version of what had occurred at the time of the offense and said that the only thing [his attorney] wanted [him] to do was take a deal. Defendant acknowledged that his attorney told him it was his decision whether to accept the plea bargain and that he chose to enter the plea. The court enumerated what it had ascertained to be defendants complaints from his letter (i.e., failure to move to suppress his statement and entry of a plea when he asserted he was innocent) and asked him again what specifically he felt his attorney had done or not done to warrant his dismissal. Defendant confirmed these to be his only complaints.

Defendants attorney explained it was his practice to advise his clients of his evaluation of a case and the risks of giving up an offer. He said that the statement that defendant sought to suppress was made prior to his detention and, thus, he did not believe there was a basis for suppressing it. The attorney did not believe that defendants postarrest statement would be the basis for implicating him in the offense. The attorney also explained that he thoroughly discussed with defendant the aiding and abetting basis of liability prior to defendants decision to enter his plea.

Defendant stated there was nothing else he wished to tell the court. The court found no ineffective assistance of counsel, referring to defendants complaints as just a classic case of buyers remorse.

On appeal, defendant does not claim that the court afforded him inadequate Marsden review. Instead, he appears to resurrect his claim of ineffective assistance of counsel based on his trial attorneys failure to file motions and because his attorney ignored his defense, thereby leaving [him] to [ac]cept the negotiated plea [b]argain. We question whether either of these issues is cognizable on appeal, despite the issuance of a certificate of probable cause, as they do not appear to go to the legality of the proceedings, but [go] instead to the question of defendants guilt or innocence. (People v. Marlin (2004) 124 Cal.App.4th 559, 566, citing People v. Hunter (2002) 100 Cal.App.4th 37, 42.)

In any event, to establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defense counsel explained at the Marsden hearing that he did not file a motion to suppress defendants statement because the statement at issue was made prior to defendants detention. Custodial interrogation is a prerequisite to establishing a Miranda violation. (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706].) Thus, defense counsel acted properly by not filing this motion, and defendant does not identify any other motions he feels should have been brought.

With regard to defendants claim that his attorney ignored his defense, leaving [him] to [ac]cept the negotiated plea [b]argain, it is not ineffective assistance of counsel for an attorney to give a client advice on the risks of forgoing a plea agreement. It appears that defendants trial attorney told him that, based on the evidence that would be presented at trial, it was unlikely he would prevail. Defendant acknowledged his attorney told him it was his decision whether to accept the plea agreement. These circumstances do not evince ineffective assistance of counsel.

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

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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[1]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

[2] Defendant also refers to issues as stated in the written declarations that he provided to his appellate counsel, but these declarations are not part of the record on appeal.

[3] Defendant provided a copy of this letter and a second letter to the probation officer when he declined to make a statement regarding the offense.

[4]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).