P. v. Lopez

Filed 6/2/08 P. v. Lopez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. L. Bryce Chase, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

On June 27, 2006, at approximately 7:28 a.m., while inmates were being released at North Kern County Prison from their housing unit for the morning meal program, an inmate assaulted another inmate. The staff announced a Code #1 emergency and directed the inmates to assume a prone position. All inmates complied except Lopez, who sat at a table and began making verbal threats. Eventually, Lopez assumed a prone position on the ground but refused to place his hands behind his back. He also threatened to batter staff members. When a lieutenant called for a Code #2 emergency, Lopez got up and rushed toward Correctional Officer Mikkleson. Correctional officers were able to subdue Lopez after spraying him with pepper spray and hitting him in the lower abdomen with an impact round. Mikkleson sustained redness on his face from exposure to the pepper spray, a cut above his eye, and a cut on his arm.

On March 26, 2006, the district attorney filed an information charging Lopez

with one count of battery by an inmate on a non-confined person (count 1/Pen. Code,

4501.5).^[1] The information also alleged that Lopez had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)).

On July 2, 2006, the prosecutor amended the information to allege one count of interfering with an executive officer (count 2/ 69). As part of a plea bargain, Lopez pled no contest to interfering with an executive officer and admitted the prior conviction allegation. In exchange for his plea, count 1 was dismissed and Lopez would receive an indicated sentence of 32 months, the mitigated term of 16 months doubled to 32 months because of Lopezs prior strike conviction, which Lopez would serve consecutive to the term he was already serving.

In announcing the terms of the plea agreement, defense counsel stated,

Your honor, Mr. Lopez is going to plead no contest to count two, an amended count two, sir; violation of Penal Code section 69 and that will be in -- referring to Sergeant Ramos, for the low term of 16 months, doubled because of the prior strike for 32 months maximum and that will be consecutive to his current commitment. Count one will be dismissed.

Lopez did not say anything in response to defense counsels summary of the plea agreement. When the court asked him twice whether he understood everything that transpired that day, Lopez responded that he did.

On July 13, 2007, Lopezs defense counsel filed a Romero^[2]motion asking the court to strike his prior conviction.

At Lopezs sentencing hearing on July 30, 2007, defense counsel argued that the court should grant his Romero motion or, alternatively, impose concurrent time on Lopezs new conviction. After denying the Romero motion and the request for concurrent time, the court stated, Probation is denied and the defendant is sentenced to the Department of Corrections. Lopez then interrupted the court and stated he wanted to withdraw his plea because he did not sign anything that said his sentence would be consecutive, consecutive sentencing was not mandatory for his offense, and he lost his prison good time credits because of the instant case.

The court responded,

Well, were not going to argue whether the defendant can withdraw his plea today but with regard to the question whether the defendant can make a motion to withdraw his plea at this point in time, that is the issue before the court. (Italics added.)

After hearing counsels comments the court ruled the motion to withdraw plea was untimely because Lopez waited to make the motion until after the court ruled on the Romero motion and the request to impose concurrent time.

Following further discussion, the court continued pronouncing sentence but had to stop to have Lopez removed from the courtroom after he became verbally disrespectful toward the court. The court then sentenced Lopez to the bargained for term of 32 months which it imposed consecutive to the term Lopez was already serving.

Lopezs appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed on December 19, 2007, Lopez raises the following issues: 1) the plea agreement did not state that his sentence in the instant case would run consecutive to the term he was already serving; 2) defense counsel told him his term was going to run concurrent; 3) he did not know his attorney filed a Romero motion or that the prosecutor filed a response because his attorney never advised him that these documents had been filed; 4) Lopez did not know the probation report recommended consecutive sentences because his attorney did not provide him with a copy of the report; 5) if Lopez had agreed to a consecutive sentence, there would not have been any need for a Romero motion; 6) his attorney should have asked for a continuance or spoken to him before proceeding without him being present; and 7) the judge was unfair in not allowing him the opportunity to withdraw his plea.^[3]There is no merit to any of these contentions.

Lopezs second, third, and fourth contentions are not cognizable on appeal because they rely on information outside the record. (People v. Seaton (2001) 24 Cal.4th 598, 634 [defendants claim was not properly before the Supreme Court because it relied on evidence outside the record].) Further, at the change of plea hearing defense counsel clearly stated in Lopezs presence that Lopezs plea agreement provided for a consecutive term on the resisting an executive officer offense and Lopez acknowledge twice during the proceedings that he understood everything that occurred that day. Consequently, the failure of the change of plea form to state that Lopez would receive a consecutive term on his new offense and Lopezs alleged failure to receive a copy of the probation report do not mean Lopez was unaware his plea bargain provided for a consecutive term on his new offense. Moreover, whether or not Lopez agreed to a consecutive term, he could still have benefitted from a successful Romero motion because it would have reduced his sentence from 32 months to 16 months.

We also reject Lopezs contention that his defense counsel should have sought a continuance or talked with him before proceeding with the sentencing hearing without him. Lopez cannot complain about his removal from the courtroom because he precipitated his removal by being disrespectful toward the court. Further, there was no need for a continuance or for defense counsel to consult with him when he was removed from the court room because the court had already ruled that the motion to withdraw plea was untimely and all that was left was for the court to finish pronouncing sentence.

Finally, we also reject Lopezs contention that the court treated him unfairly by not allowing him the opportunity to withdraw his plea. A motion to withdraw plea must be presented at any time before judgment. (Pen. Code, 1018.) If considerable time has elapsed between the guilty plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay. [Citations.] The motion to withdraw the plea may be motivated by the defendants knowledge [citation] or well founded belief [citation] that the sentence he will receive will be substantially more onerous than that he anticipated at the time he entered the plea of guilty. The fact that the defendant is disappointed in the sentence he received following a plea of guilty presents no ground for the exercise of the judicial discretion to permit the plea of guilty to be withdrawn. [Citations.] A defendant charged with an offense cannot be permitted to gamble on the anticipated result of a plea of guilty and when disappointed in the outcome reestablish a right to trial. [Citation.] (People v. Caruso (1959) 174 Cal.App.2d 624, 641-642, emphasis added.)

Here, defense counsel clearly stated at the change of plea hearing that the term on the new offense would run consecutive to the term Lopez was already serving. At his sentencing hearing, Lopez was silent even after hearing defense counsel argue for a concurrent term on his new offense in the event the court did not strike Lopezs prior conviction. It was not until after the court denied Lopezs request for a concurrent term and was in the middle of pronouncing sentence that Lopez told the court he wanted to withdraw his plea. Thus, the court did not treat Lopez unfairly in denying him the opportunity to withdraw his plea because the record supports the courts finding that Lopezs motion to withdraw his plea was untimely. (People v. Caruso, supra, 174 Cal.App.2d 624, 641-642.)

Following independent review of the record we find that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and, Gomes, J.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[3]Lopez also asks to be assigned another appellate counsel because his appellate counsel allegedly never made contact with him before submitting a Wende brief and he raised an issue regarding restitution which was resolved in Lopezs favor. This request is denied.