P. v. Toucher
Filed 12/3/13 P. v. Toucher 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH DUANE TOCHER,
Defendant and Appellant.
C073984
(Super. Ct. No. 62115015)
Appointed counsel for defendant Kenneth Duane Tocher asked this court
to review the record and determine whether there are any
v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result
in a disposition more favorable to defendant, we will affirm the judgment.
I
Because the matter was resolved by
plea and defendant waived referral to the probation department, the facts are
taken from the prosecutor’s statement of factual basis for the plea. In July 2012, defendant knowingly and
intentionally possessed property that had been stolen from a Placer County retailer, and knowingly possessed a usable
amount of methamphetamine, knowing the substance to be methamphetamine.
After his Marsden
name="_ftnref1" title="">[1] motion was denied, defendant pleaded no
contest to receiving stolen property (Pen. Code, § 496, subd. (a))
& Saf. Code, § 11377, subd. (a)) in exchange for dismissal of three
other counts and an unrelated case.
The trial court sentenced defendant to
the stipulated term of two years in jail, awarded 11 days of custody credit and
10 days of conduct credit, and ordered defendant to pay a $240 restitution fine
(§ 1202.4), a $240 parole revocation fine (§ 1202.45), an $80 court
operations fee (§ 1465.8, subd. (a)(1)), and a $60 court facilities
assessment (Gov. Code, § 70373).
Defendant’s motion to withdraw his
plea was dropped. Defendant obtained a
II
Appointed counsel filed an
the case and asking this court to review the record and determine whether there
are any arguable issues on appeal. (
file a supplemental brief within 30 days of the date of filing the opening
brief, and defendant filed a supplemental brief raising various issues, which
we address in turn.
A
Defendant contends his
trial counsel rendered ineffective assistance.
In this Placer
County case, he pleaded no contest to receiving
stolen property. But he claims his defense
counsel should have informed the trial court that “if [he] would plea to
misdemeanor embezzlement†in another Sacramento County case involving the same
property as in this case, Placer County could not charge him with felony
receiving stolen property, thus preserving his eligibility for treatment under
Proposition 36. (§ 1210.1.) In another paragraph he adds that he was
deprived of his right to plead in Sacramento County to misdemeanor embezzlement
as a lesser offense so that Placer County would lose jurisdiction, enabling him
to be eligible for treatment under Proposition 36.
The record on appeal does not
explain the reasons for the forum choices made by the parties, but it does
confirm that such choices were made. The
prosecutor said that as part of the plea agreement, the People would notify
Sacramento County of defendant’s plea to receiving stolen property in this case
and recommend dismissal of the pending misdemeanor embezzlement charge in Sacramento
County.
Defendant’s trial counsel was never asked
to explain the reasoning for the agreement, and the record does not demonstrate
that there could be no satisfactory explanation. Our review of the record does not disclose
that trial counsel was ineffective.
B
Defendant next claims the trial
court erred in denying his Marsden
motion. At the Marsden hearing, defendant said his trial counsel whispered in his
ear during a court proceeding that it “ ‘wasn’t wise to complain against
your lawyer.’ †Defendant took the
remark to mean that counsel was not acting in defendant’s best interest. But the trial court found that defense counsel
had worked very hard for defendant and obtained an offer that defendant was
willing to accept. The trial court said
there was no basis to replace counsel.
Defendant further complains that his
trial counsel said “I’m done with you.†However,
defendant did not mention the remark during the Marsden hearing, when he had the opportunity to reveal what his
attorney may have said to him.
We have reviewed the record and we
have not identified any error by the trial court in connection with the
C
Defendant claims that every time he
tried to assert the alleged facts referenced in parts A and B,
attorney made such a statement, counsel was not asked to explain the remarks,
and there could be a satisfactory explanation.
Again, our review of the record does not disclose ineffective
assistance.
D
Defendant contends he made a plea to
go to “behavioral court†and he was evaluated.
According to defendant, the court said it was apparent defendant had mental
health issues. Defendant says that is where
“it stopped.†He adds that “for some
reason Placer County Superior Court never entertained this request.â€
The record does not mention
behavioral court or shed any light on defendant’s contention. No error appears in the record.
E
Defendant asks this court to relieve
his appointed appellate counsel and to substitute defendant in propria
persona. However, defendant offers no
reason for the request and none appears in the record. Accordingly, defendant’s request to relieve
appellate counsel is denied.
Having undertaken an
examination of the entire record, we find no arguable error that would result
in a disposition more favorable to defendant.
DISPOSITION
The
judgment is affirmed.
MAURO , J.
We concur:
RAYE , P. J.
DUARTE , J.
name="_ftn1" title="">[1] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
name="_ftn2" title="">[2] Undesignated statutory
references are to the Penal Code.
