P. v. Watkins



Filed 1/4/11 P. v. Watkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. GARY LEE WATKINS, Defendant and Appellant.

C060369 (Super. Ct. No. 05F06892)

Police received a report that defendant Gary Lee Watkins, the owner of a nursery business, had a rifle and had threatened to go to another nursery and kill everyone inside. When officers went to his residence, defendant fled but was detained near his office. A shotgun “was recovered at the front of his business,” and a cigarette box containing methamphetamine was found in “the area where the defendant fled.” The police report reflects that defendant’s home was searched with the consent of his wife, and a revolver was found in the kitchen pantry.
Defendant was charged with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)(1)), making a criminal threat (Pen. Code, § 422), and two counts of being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). (Further section references are to the Penal Code unless otherwise specified.) It was also alleged that he had two prior serious felony convictions.
After he discharged his retained counsel, defendant hired another lawyer, who filed a motion to suppress the evidence seized at defendant’s home. The motion asserted that the seizure was the product of a warrantless entry “immediately preceded by an unlawful arrest,” that the consent for the search was involuntary, and that, in any event, his wife had no authority to allow the officers to search over defendant’s objection.
A magistrate denied the motion to suppress evidence, and defendant was held to answer to the charges.
Defendant ultimately entered a negotiated plea of no contest, “pursuant to People v. West” (People v. West (1970) 3 Cal.3d 595), to the charge of making criminal threats. It was agreed that the other charges would be dismissed and that defendant would be placed on probation with various terms, including he serve 365 days in custody.
At the subsequent sentencing hearing, defense counsel informed the trial court that defendant wanted to file a motion to withdraw his plea on the ground he “didn’t enter it freely and voluntarily.” Defense counsel said defendant would have to explain the motion because counsel believed that the plea was knowingly and freely entered and that “everything was in order.” According to defense counsel, defendant wanted to present evidence that the police and the victim were attempting to destroy defendant and his business.
When defendant asked to speak, the court--which had already advised defendant of his right to represent himself (Faretta v. California (1975) 422 U.S. 806, 819-820 [45 L.Ed.2d 562])--inquired whether defendant was firing his defense counsel and choosing to represent himself. Defendant replied, “Yes, I am,” and “Yes, he is fired.” The court then asked defendant for the ground upon which he was basing his motion to withdraw his plea. Defendant responded by accusing defense counsel of giving him improper advice and “not looking out for [defendant’s] best interest.” Claiming he had been sick on the day of the plea and “couldn’t hear because [his] ears were stopped up,” defendant asserted that he “did not understand what was going on” and was “under very much distress” when he entered his no contest plea.
Noting that the record of the plea contradicted defendant’s claims, the trial court denied the motion.
When the court asked whether defendant wanted to continue to represent himself at the sentencing hearing or have defense counsel do so, defendant stated that he would have counsel represent him. The trial court then proceeded to impose sentence in accordance with the plea agreement.
Defendant appealed and now raises a variety of claims of error by the court and defense counsel. We shall modify two conditions of probation and affirm the judgment as modified.
DISCUSSION
I
Defendant contends the magistrate erred in denying the motion to suppress evidence. We decline to address the contention because defendant did not preserve it for appeal.
A defendant must seek review of a magistrate’s suppression ruling “in the superior court to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention” either by a motion to suppress evidence or a section 995 motion. (People v. Lilienthal (1978) 22 Cal.3d 891, 896.) The unification of the municipal and superior courts did not abrogate this requirement. (People v. Richardson (2007) 156 Cal.App.4th 574, 582-583 (hereafter Richardson); see also People v. Hinds (2003) 108 Cal.App.4th 897, 900; People v. Hart (1999) 74 Cal.App.4th 479, 485-486.)
Having failed to renew his motion in superior court, defendant argues that this court’s decision in Richardson was wrongly decided and that Lilienthal did not hold a defendant must raise his search and seizure issue in superior court to preserve it for appellate review. It is defendant who is wrong on this issue.
Lilienthal expressly held that a suppression motion brought before a magistrate must be raised in superior court in order to preserve the matter for appeal–-a ruling that has survived court unification.
In an effort to circumvent this procedural bar to appellate review, defendant claims--without any meaningful analysis--that he received ineffective assistance of counsel when his trial attorney did not renew the motion in the superior court. This effort fails because a “claim on appeal of ineffective assistance of counsel must be rejected ‘“[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’ [Citations.] Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, ‘the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsel’s conduct or omission.’ [Citation.]” (People v. Hinds, supra, 108 Cal.App.4th at p. 901.) Here, defense counsel was not asked to explain why the suppression motion was not renewed; and satisfactory reasons may exist for not having done so. Even if successful, the suppression motion would not have prevented the prosecution of defendant on three of the counts as well as the enhancement allegations; and it is quite possible the plea agreement--which was very favorable to defendant--would not have been offered by the prosecutor if defendant pursued the suppression motion. On this record, defense counsel was not ineffective in forgoing another motion to suppress evidence.
II
Also without merit is defendant’s contention that the trial court denied his motion to withdraw his plea without affording defendant proper procedural protections.
In defendant’s view, (1) the court should have ascertained in a proceeding akin to a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) whether defendant wanted substitute counsel, and (2) if so, the court should have balanced this against the disruption that would flow from providing new counsel. However, as defendant acknowledges, his attorney was retained by him, not appointed by the court. Thus, the procedure required by Marsden did not apply. (People v. Ortiz (1990) 51 Cal.3d 975, 983, 986.)
III
Next, we reject defendant’s contention that he should have been allowed to withdraw his plea because it was “uninformed, involuntary and induced through ineffective assistance of counsel.”
Defendant baldly asserts that, because his plea was entered pursuant to People v. West, supra, 3 Cal.3d 595, it “must be assumed that [he] entered into the plea agreement with the understanding that he would be able to contest the validity of the search and seizure on appeal.”[1] We have carefully reviewed the plea colloquy and find nothing to support this assumption. Indeed, when asked whether any promise, other than as stated by counsel and the court during the plea colloquy, had been made to him to “get [him] to plead no contest here today,” defendant answered, “No, your Honor.” And, as we have pointed out, the count based on evidence seized during the search of defendant’s residence was dismissed as part of the plea agreement.
Next, defendant argues his “change of plea was induced through his counsel’s ineffective failure to litigate a meritorious Miranda motion” (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) as to statements made by defendant regarding whether he knowingly possessed the handgun found in the search of his home. The argument is puzzling because the issue was raised in an earlier proceeding (at which time the trial judge deferred a ruling on the matter) and then became moot when defendant entered into a plea agreement that resulted in the dismissal of the charge of being a convicted felon in possession of the handgun found in the defendant’s residence. Aside from resulting in the dismissal of the handgun charge, the plea agreement resulted in dismissal of another gun possession charge and prior serious felony conviction allegations that would have had major adverse consequences for defendant if he went to trial and those charges were sustained. Under the circumstances, it is impossible to fathom how defendant’s plea could have been induced by his counsel not having pursued a Miranda motion that was rendered moot by the plea agreement.
Equally without merit is defendant’s claim that his “change of plea was induced through his counsel’s ineffective failure to fully litigate a meritorious Crawford motion” (Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177] (hereafter Crawford)) regarding a statement made to the complaining witness by a person who is not identified in the police report, warning that defendant had a firearm described as a rifle type of gun. The People correctly describe the argument as “seriously amiss.” This is so because Crawford held the Sixth Amendment to the United States Constitution does not allow, in a criminal trial, the introduction of “testimonial statements of a witness who [does] not appear at trial unless he [is] unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination (id. at pp. 53-54 [158 L.Ed.2d at p. 194]); however, the warning at issue was not a testimonial statement (Davis v. Washington (2006) 547 U.S. 813, 821-822 [165 L.Ed.2d 224, 237]). Thus, a pretrial Crawford motion would have failed.
Simply stated, the record does not support defendant’s claim that his plea was “uninformed, involuntary and induced through ineffective assistance of counsel.” Consequently, the trial court did not abuse its decision in denying defendant’s motion to withdraw his no contest plea. (See People v. Holmes (2004) 32 Cal.4th 432, 442-443; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
IV
Defendant does raise one meritorious contention.
As a condition of probation, the trial court ordered that defendant “shall not associate with known or reputed users of marijuana, dangerous drugs, or narcotics nor be in places where narcotics and/or dangerous drugs are present,” and that he “shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where such a person has such a weapon, nor remain in the presence of any armed person.”
Defendant contends, and the People concede, these provisions are unconstitutionally vague or overbroad because they do not include a personal knowledge requirement.
“A probation condition is subject to the ‘void for vagueness’ doctrine, and thus ‘must be sufficiently precise for the probationer to know what is required of him . . . .’” (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) We agree that the condition forbidding defendant from “associat[ing] with known or reputed users of marijuana, dangerous drugs, or narcotics . . . [or being] in places where narcotics and/or dangerous drugs are present” is vague to the extent it does not require defendant to know that drugs are present in the location. Likewise, the condition forbidding defendant from “remain[ing] in any building or vehicle where [any] person has . . . a [dangerous or deadly] weapon” or “remain[ing] in the presence of any armed person” is vague to the extent that it does not require him to know of the presence of the offending weapon or weapons.
When conditions of probation can be modified to correct their constitutional infirmities, courts are empowered to do so. (People v. Turner (2007) 155 Cal.App.4th 1432, 1436.) Accordingly, we will modify the condition to impose an explicit knowledge requirement in order to render the conditions constitutional. (See In re Sheena K. (2007) 40 Cal.4th 875, 892.)
Defendant also complains that the weapons provision is overbroad as it would prevent him from being in the presence of law enforcement officers. The People correctly retort defendant’s interpretation of the provision is patently unreasonable.
V
Pursuant to this court’s miscellaneous order number 2010-002, filed March 16, 2010, we deem defendant to have raised the claim that amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits.
We conclude the amendments to section 4019 apply to appeals pending as of January 25, 2010, including defendant’s appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”] (hereafter Estrada); People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment of section 2900.5 allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)
However, the amendments to section 4019 do not operate to modify defendant’s entitlement to credit because he has prior convictions for rape, a serious felony. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50; § 1192.7, subd. (c)(3).)
DISPOSITION
The order of probation is modified to state that defendant shall “not associate with persons he knows or reasonably should know are users or reputed users of marijuana, dangerous drugs or narcotics, or be in places where he knows or reasonably should know that narcotics and/or dangerous drugs are present,” and shall “not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where he knows or reasonably should know any person (other than one who is authorized by law to possess a deadly weapon) has such a weapon, nor remain in the presence of any person he knows or reasonably should know is unlawfully armed.” As modified, the judgment is affirmed. The trial court is directed to amend the order of probation to reflect the modifications.




SCOTLAND , J.*



We concur:



RAYE , P. J.



ROBIE , J.





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* Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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