P. v. Ramos

Filed 12/22/08 P. v. Ramos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tulare County. Gary L. Padden, Judge.

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

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

On October 19, 2007, appellant, Abel Ramos, was charged in an information with possession of methamphetamine for sale (Health & Saf. Code,  11378, count one) and maintaining a place for the use or sale of methamphetamine (Health & Saf. Code,  11366, count two).

The information was filed after appellants preliminary hearing on October 12, 2007. Deputy Michael Hallum of the Tulare County Sheriffs Department testified that on June 1, 2007, he was serving a narcotic search warrant at a residence in Cutler. He and other investigators found 20 grams of methamphetamine. They also found a digital gram scale, surveillance cameras, and paperwork in appellants name. Hallum completed an 80-hour course from the Department of Justice in narcotics investigation and received an additional 80 hours of training specifically related to methamphetamine and methamphetamine manufacturing. Hallum explained that the scale was being used to weigh narcotics for distribution purposes.

There was also an all-purpose plastic scale. Both scales had narcotics residue on them. The methamphetamine was found in an inner pocket on a pair of shorts appellant was wearing. Hallum explained that surveillance cameras were outside the front door and pointed down an alley. Hallum found a glass pipe and a police scanner, which is used to notify people when law enforcement is coming near a residence. No one else resided in appellants home.

On December 21, 2007, appellant filed a motion pursuant to Penal Code section 995 to set aside count two of the information. The People opposed the motion. On January 11, 2008, the trial court denied the motion.

On January 23, 2008, appellant agreed to plead no contest to count one in exchange for the dismissal of count two. Appellant would receive felony probation. Appellant indicated he was not entering the plea under coercion and had sufficient time to discuss the plea with his counsel.

The court advised appellant of the consequences of his plea as well as his constitutional rights pursuant to Boykin/Tahl.^[1] The court, without objection, found a factual basis for the plea from the preliminary hearing. Appellant waived his rights and pled no contest to count one.

On April 9, 2008, appellants trial counsel filed a motion, including appellants declaration, for him to withdraw his plea on the grounds that he was confused, nervous, under stress, and did not understand the charges. On April 24, 2008, the date for sentencing, the court appointed substitute counsel, Greg Blevins, to make the motion for appellant to withdraw his plea. The court noted its tentative ruling was to deny the motion. Blevins called appellant as a witness.

Appellant said that he was represented by Heather Tomka and that he did not have much time to discuss the plea bargain with her. Appellant said that although he knew what was going on in his case, he tried to get another attorney. Appellant entered into the no contest plea because he believed there was no other alternative.

Appellant stated on cross-examination that he did not talk to Tomka even though he made several court appearances with Tomka representing him. Appellant said he told Tomka that she was not representing him to her fullest ability. Appellant said he did talk to Tomka once prior to entering his change of plea. Appellant acknowledged that Tomka filed a motion to dismiss count two, but complained that the motion was not granted.

Appellant stated that Tomka failed to ask him if he was innocent or guilty. Appellant said Tomka told him it was obvious that he got caught and her advice was to enter into a plea bargain. Appellant said that Tomka never told him he had a defense. Appellant admitted that he knew the consequences of his plea but that he entered into the plea bargain because he was afraid as far as Tomkas representation of him.

Tomka testified that she discussed the allegations with appellant many times. Tomka weighed the favorable and unfavorable evidence with appellant on both allegations. When appellant was originally arraigned on the charges, Tomka had a lengthy conversation with him concerning the case. During that meeting, Tomka discussed the merits and weaknesses of the case. On numerous occasions, Tomka discussed the allegations and the consequences of a plea.

Tomka did not request an investigator. Tomka never found appellants answers to questions during their conversations to be nonresponsive. Tomka did not think appellant liked her. The court found nothing in the plea transcript to suggest that appellant had any problems or misunderstanding of the plea agreement. Also, appellant showed no nervousness or reservation in entering into the change of plea. The court denied appellants motion to withdraw his plea.

When appellant sought to bring a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) against Tomka, the court denied the motion and left Blevins as appellants counsel. Appellant did not object to this procedure. Appellant did not bring a Marsden motion against Blevins. Blevins had reviewed the probation report. The court placed appellant on felony probation for three years and ordered that he serve 240 days in jail with credit for three days spent in custody. The court ordered a restitution fine and other fees, fines, and penalty assessments. Appellant obtained a certificate of probable cause.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on October 7, 2008, we invited appellant to submit additional briefing. To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^*Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.

^[1]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.