P. v. Olson
Filed 8/20/08 P. v. Olson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. STEVEN JOHN OLSON, Defendant and Appellant. | E044939 (Super.Ct.No. SWF023183) OPINION |
APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed with directions.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Steven John Olson was sentenced to state prison pursuant to a negotiated plea agreement providing for a stipulated low term of years, concurrent with any other term. Defendant filed a postjudgment motion which has been treated as an appeal. Defendant has filed a supplemental brief in propria personato which he has appended an unfiled petition for writ of habeas corpus.
BACKGROUND
Because defendant pled guilty before a preliminary hearing could take place (Pen. Code, 859a), and because no documents establishing the factual basis were submitted to the trial court at the time of the change of plea, and because defendant waived his right to a probation referral and report, there is no information about the offense in the record on appeal.
Nevertheless, due to an incident occurring on October 7, 2007, a felony complaint was filed. The complaint alleged defendant made a criminal threat (Pen. Code, 422, count 1), attempted to commit arson of an inhabited structure (Pen. Code, 664, 451, count 2), drove a vehicle under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a), count 3), and was under the influence of a controlled substance. (Health & Saf. Code, 11550, subd. (a), a misdemeanor, count 4.) It was further alleged that defendant had served a term in state prison for a prior felony conviction (prison prior). (Pen. Code, 667.5, subd. (b).)
On October 25, 2007, at the time set for the preliminary hearing, defendant entered into a negotiated plea agreement. The terms of the plea bargain included an agreement that the complaint would be amended to add count 5, alleging assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)), to which defendant would plead guilty. In return for the guilty plea, the parties agreed the balance of the complaint would be dismissed and that the sentence would be a stipulated term of two years in state prison. The agreement further provided that the sentence would run concurrent with any other sentence of term imposed for any parole violation.
Defendant pled guilty, waived his right to a probation referral and report, and requested immediate sentence. At defendants request, the court made a factual finding of innocence as to the dismissed counts pertaining to driving under the influence of alcohol/drugs and being under the influence of controlled substances. He was sentenced to the low term of two years in state prison in accordance with the plea agreement.
On January 10, 2008, a document partially entitled Motion to receive time waiver and to Compel Discovery or withdraw Plea once Ive received Discovery, which was postmarked December 13, 2007, was filed and treated as a notice of appeal.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, and he has filed a brief challenging various violations, most of which appear to be a collateral attack on his guilty plea. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and address the following points identified in the briefs.
Issues Raised in Defendants Supplemental Brief
Defendant contends (1) he was deprived of effective assistance of counsel for counsels failure to file a notice of appeal; (2) there is a clerical error in the abstract of judgment because it incorrectly refers to assault w/weapon; and (3) that he was deprived of full discovery. He also addresses issues relating to a civil rights action pending in the United States District Court for which we lack jurisdiction to decide, a declaration criticizing the level of experience of attorneys representing clients on the date of his plea, a motion for injunction filed in the United States Supreme Court on May 23, 2008, an article on effective cross-examination, and an unfiled Petition for Writ of Habeas Corpus, attached to his supplemental brief as exhibits.
Preliminarily, we find that none of the issues raised by defendant are properly before us because he did not request and obtain a certificate of probable cause. Under Penal Code section 1237.5 and California Rules of Court, rule 8.304(b)(3), the Court of Appeal generally may not proceed to the merits of the appeal following a guilty plea which challenges its validity unless the defendant has filed a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and has obtained a certificate of probable cause within 20 days after filing of the statement. (People v. Mendez (1999)19 Cal.4th 1084, 1096.) Nevertheless, pursuant to People v. Kelly, supra, 40 Cal.4th 106, we have independently reviewed the record for potential error, and address the points raised by defendant pursuant to Anders v. California, supra, 386 U.S. 738, 744 [87 S.Ct. 1396, 18 L.Ed.2d 493].
The defendants claim of ineffective assistance of counsel for failing to file the notice of appeal is moot because the trial court treated his motion to compel discovery and to withdraw his plea as an appeal. His complaint that he has been deprived of his right to discovery, a theme running through much of his supplemental brief, was waived by the plea of guilty. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Even if a certificate of probable cause had been timely requested and issued, it would not permit review of such issues.
The only issues that survive a guilty plea are jurisdictional or constitutional issues going to the legality of the proceedings, and a certificate of probable cause is an essential condition precedent to raising such claims. (People v. Turner (1985) 171 Cal.App.3d 116, 126 [a guilty plea represents a break in the chain of events that may preclude claims as to pre-plea rights]; see also, People v. Lovings (2004) 118 Cal.App.4th 1305, 1311.) Discovery issues are not considered issues going to the legality of the proceedings and are not cognizable on appeal following a guilty plea. (People v. Hunter, supra, 100 Cal.App.4th at p. 42.)
Nor are defendants other claims reviewable. When a defendant admits his guilt in open court, he is not permitted thereafter to raise independent claims relating to the deprivation of rights that occurred prior to the entry of the guilty plea. (Tollett v. Henderson (1973) 411 U.S. 258, 267 [93 S.Ct. 1602, 36 L.Ed. 2d 235].) Even if such an issue could survive a guilty plea, it was not preserved by a timely objection or motion and was therefore forfeited. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) To the contrary, defendant expressly waived any error relating to discovery prior to the entry of his plea of guilty when he explained to the court he had wanted to see the discovery before entering a plea. When he subsequently informed the court he was okay with his lawyer and prepared to change his plea, he acknowledged he no longer had concerns about discovery.
Many of the defendants references to discovery actually appear to refer to papers that were not transferred along with him to prison, and that he seeks to recover. However, neither the prosecutor, defense attorney, nor the trial court is responsible for the loss of paperwork or property transferred between penal institutions, and the record on appeal does not include any motion for return of property. (Pen. Code, 1536, 1540.)
Defendant is correct that the abstract of judgment describes his conviction as assault w/weapon, a clerical error which may be modified. All the remaining claims in the supplemental brief pertain to matters outside the record on appeal which we cannot consider. (People v. Waidla (2000) 22 Cal.4th 690, 743.)
Anders Issues
We have independently reviewed the record. Defendants appointed counsel points to three potential issues: (1) whether defendants motion to compel discovery should have been construed as a petition for writ of error coram nobis; (2) whether a hearing should have been granted on defendants request to withdraw his plea; and (3) whether a certificate of probable cause is necessary to raise on appeal the denial of a hearing on a request to withdraw a plea.
Defendants postjudgment motion to compel discovery could not be construed as a petition for writ of error coram nobis because it raises an issue of legal error. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) Defendant was not entitled to have a hearing on a request to withdraw his plea because he did not make a timely motion to withdraw his plea prior to judgment and made no showing of good cause to vacate the plea. (Pen. Code, 1018.) Finally, a certificate of probable cause is required to raise on appeal the denial of a hearing on a request to withdraw a guilty plea. (People v. Emery (2006) 140 Cal.App.4th 560, 565.)
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
We direct the clerk of the court to amend the abstract of judgment to delete reference to assault w/weapon, and to reflect that the nature of the conviction was assault by means likely to produce great bodily injury. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Ramirez
P. J.
s/Hollenhorst
J.
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