P. v. Jones
Filed 8/27/13 P. v. Jones CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALFRED LONZO JONES,
Defendant and
Appellant.
H039113
(Santa Clara
County
Super. Ct.
No. C1229357)
I.
introduction
Defendant
Alfred Jones was convicted by his no contest plea of a second violation of a
earlier conviction of violating a protective order. (Count 2; Pen. Code, § 273.6, subd. (e).)
conviction for criminal threats prohibited by section 422. (§ 667, subds. (b) – (i); 1170.12.) Following the denial of his
court sentenced him to 32 months in prison (the 16 month lower term
doubled). Defendant filed a notice of
appeal without obtaining a certificate of probable cause. The notice recited that the appeal was based
on matters occurring after the plea that do not affect its validity.
By
letter dated May 7, 2013,
this court notified defendant that his appellate counsel filed a brief inviting
us to identify any arguable appellate
issues. Defendant has responded with
a half-page handwritten letter. For the
reasons stated below, we will affirm the judgment.
II. standard
of review
We
review the entire record to determine whether appointed counsel has correctly
determined that there are no arguable issues.
(People v. Wende (1979) 25
Cal.3d 436, 441.) In performing our
review, we are required to give a brief description of the facts, the
procedural history, the crimes of which the defendant was convicted, and the
punishment imposed, and to address any contentions personally raised by the
defendant. (People v. Kelly (2006) 40 Cal.4th 106, 124.)
III. trial
court proceedings
According
to the probation report’s summary of a police report, shortly before 3 a.m. on April 17, 2012, police officers responded to an apartment
in the City of Santa Clara based on
a report of domestic violence. The
victim, Adrian Carradine, told them that her boyfriend, defendant Alfred Jones,
had come home heavily intoxicated after attending a domestic violence
class. They argued and he threatened to
strike her with a cane and an umbrella.
He choked her for about two minutes as she was lying on the bed. As she left their residence, he grabbed a
large kitchen knife and threatened to kill her if she left. The police observed no visible injuries and
the victim declined medical attention.
Defendant
was initially charged by complaint with the felonies of forcible assault (count
1; § 245, subd. (a)(4)) and a second violation of a protective order (count 2;
§ 273.6, subd. (e)) and the misdemeanors of criminal threats (count 3; § 422)
and exhibiting a knife in a threatening manner (count 4; § 417, subd.
(a)(1)). The complaint also alleged that
a prior criminal threats conviction was a strike. (§ 667, subds. (b) – (i); 1170.12.)
There
was no preliminary examination. On June
12, 2012, defendant, represented by Deputy Public Defender Kenny Luu, agreed to
plead guilty or no contest to count 2, to admit the prior strike conviction,
and to admit violating probation in two other cases, in exchange for the
prosecution seeking dismissal of the remaining charges and defendant receiving
a maximum prison sentence of 32 months if his motion to dismiss the strike was
unsuccessful. Defendant answered “yesâ€
when asked if this reflected his understanding of the resolution of his
case. Defendant and his attorney signed
and initialed an eight-page advisement of rights, waiver, and plea form. Defendant orally acknowledged that he
understood the form on which his initials and signature appeared. After being advised by the court, defendant
waived his trial rights and pleaded no contest to “the charge in Count 2, a
violation of a protective order with a prior within one year which resulted in
injury to a victim in violation in [sic]
Penal Code Section 273.6 (e).†His
attorney stipulated that the police report provided a factual basis for the
plea. Defendant admitted the prior
strike and the probation violations.
IV.
Both
defendant’s October 25, 2012
motion to dismiss his prior strike and the prosecutor’s opposition, filed on November 8, 2012, appear in the
clerk’s transcript to have been filed as confidential documents.
public was excluded from the court hearing on November 16, 2012.
Defendant’s
Romero motion (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497) alleged the
victim lied about the current crimes and defendant’s past crimes resulted from
his mental problems. At the November 16, 2012 hearing, the
victim described herself as defendant’s fiancée. She expressed her belief that he needs mental
health treatment because he is depressed and bipolar, and that he used alcohol
in an attempt to self-medicate. She
falsely accused him of attacking and threatening her because she was angry and
she apologized for the problems she had caused.
Defendant said he was off his medication at the time of the
incident. Defense counsel acknowledged
that defendant’s fiancée was also the victim of his 2011 strike. Defense counsel argued that although
defendant has quite a history of drug use, most of his prior crimes were
misdemeanors. The prosecution pointed
out that defendant’s criminal history dates back to 1983 and includes battery
and exhibiting a deadly weapon. The
court took the motion under submission until the sentencing hearing.
On
December 7, 2012, the court denied the motion
to dismiss the strike. The court
noted that the prior strike, involving choking and a threat to kill, was from
October 2011 and the current incident, involving choking and a threat with a
knife, occurred only six months later.
The court also expressed concern that defendant has another prior felony
conviction and an extensive misdemeanor history involving weapons, drugs, and
some violence.
After denying the
sentence of 32 months in prison. The
court also imposed a minimum restitution fine of $240 under section 1202.4, an
equivalent suspended fine under section 1202.45, a court security fee of $40
under section 1465.8, a $30 criminal conviction assessment under Government
Code section 70373, and a peaceful contact order under section 136.2. The court also terminated probation in his
two prior cases. Defendant was given
credit for 469 days in custody.
V. Defendant’s
letter
Defendant
raises two issues in his letter, both arising before the entry of his
plea. He claims that the victim was
telling the truth when she said she had lied about his conduct. He should not have been convicted of
something that did not happen.
Defendant
cannot plead no contest in the trial court and then claim on appeal that his
plea lacks evidentiary support. As this
court explained in People v. Voit
(2011) 200 Cal.App.4th 1353 at page 1364:
“A guilty plea convicts the defendant of the charged crime without proof
at trial. (People v. Ward (1967)
66 Cal.2d 571, 574; People v. Hoffard (1995) 10 Cal.4th 1170, 1178 (Hoffard);
In re Chavez (2003) 30 Cal.4th 643, 649; see People v. Wallace
(2004) 33 Cal.4th 738, 749 (Wallace).)
‘ “The legal effect of [a no
contest plea] to a crime punishable as a felony, shall be the same as that of a
plea of guilty for all purposes.†(§
1016, subd. 3.) A guilty plea “admits
every element of the crime charged†[citation] and “is the ‘legal equivalent’
of a ‘verdict’ [citation] and is ‘tantamount’ to a ‘finding’ [citations]â€
[citation].’ (Wallace, supra, 33
Cal.4th 738, 749.) [¶]
the defendant’s guilt or innocence are not cognizable on appeal from a guilty
plea. (Hoffard, supra, 10 Cal.4th
at p. 1178; In re Chavez, supra, 30 Cal.4th at p. 649.) By admitting guilt a defendant waives an
appellate challenge to the sufficiency of the evidence of guilt. (People v. Thurman (2007) 157
Cal.App.4th 36, 43-44; see People v. Martin (1973) 9 Cal.3d 687,
693-694.) The same restrictions on
appellate issues apply after a no contest plea (cf. People v. Shults
(1984) 151 Cal.App.3d 714, 719; see Wallace, supra, 33 Cal.4th at p.
749) and the admission of an enhancement (People v. Lobaugh (1987) 188
Cal.App.3d 780, 785.)â€
Defendant
also asserts that Kenny Luu was not his attorney at the time of his plea. This claim contradicts the record on appeal,
which shows Luu appearing on defendant’s behalf without protest from
defendant. If defendant has in mind
other facts not appearing in the record, they must be presented by petition for
writ of habeas corpus and not by appeal.
(In re Bower (1985) 38 Cal.3d
865, 872.)
We
have reviewed defendant’s letter and the record on appeal without finding any
arguable issue.
VI.
Disposition
The
judgment is affirmed.
____________________________________
Grover,
J.
CONCUR:
____________________________
Rushing,
P.J.
____________________________
Márquez,
J.
Penal Code.
to dismiss a strike to be filed as confidential, nor do we see any court order
in the record requiring or permitting a confidential filing. “A record must not be filed under seal
without a court order. The court must
not permit a record to be filed under seal based solely on the agreement or
stipulation of the parties.†(Cal. Rules
of Court, rule 2.551(a).)
