P. v. Williams
Filed 2/7/12 P. v. Williams CA2/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
PHILLIP
EBAN WILLIAMS,
Defendant and Appellant.
A131494
(Alameda
County
Super. Ct. No. 164102)
Phillip
Eban Williams appeals from a judgment of
conviction entered upon his plea of no contest to
(Pen. Code, § 220, subd. (a))
in exchange for a sentence not to exceed four years in prison. His court appointed attorney has filed a
brief raising no legal issues and requesting this court to conduct an
independent review of the record pursuant to People v. Wende (1979)
25 Cal.3d 436.
PROCEEDINGS
BELOW
On
May 5, 2010 (all dates are in that year) the
County District Attorney filed a complaint alleging that on May 2,
appellant committed assault with intent to commit a sex crime (§ 220,
subd. (a)) (count 1); attempted
forcible rape (§ 261, subd. (a)(2)) (count 2); assault by
means likely to produce great bodily injury (§ 245, subd. (a)(1))
(count 3); kidnapping (§ 207,
subd. (a)) (count 4); and resisting or obstructing a peace officer
(§ 148, subd. (a)(1)) (count 5).
As to the first two counts, the complaint alleged inflicted great bodily
injury on Doe (§ 12022.8), causing the offense to be a serious felony
within the meaning of section 1192.7, subd. (c )(8)). As to the third and fourth counts it was
alleged that appellant inflicted great bodily injury (§ 12022.7,
subd. (a)), causing the offenses to be serious offenses within the meaning
of section 1192.7, subd. (c)(8).
It was further alleged that appellant suffered two prior felony
convictions for which he had been sentenced to probation: possession of a firearm by a felon (former § 12021,
subd. (a)(1)), and carrying a concealed
firearm within a vehicle (former § 12025, subd. (a)(1)).
At
a preliminary hearing held on June 30, the court found probable cause to
believe appellant committed the offenses charged in counts 1, 2, and 3,
and found great bodily injury as to each of those counts. (§§ 12022.8, 12022.7.) Appellant was held to answer on those counts
and the great bodily injury allegations.
An information incorporating those counts and allegations was filed on
July 7.
On
July 14, appellant made a Marsden
motion (People v. Marsden (1970)
2 Cal.3d 118), claiming that “I wasn’t represent[ed] properly at my
prelim. I feel that my attorney, had
they set up a defense, the matter would have got resolved and wouldn’t have
made it this far to up here.†The motion
was denied as premature because appellant had not yet been arraigned. When trial proceedings commenced on
August 30, appellant made another Marsden
motion, which was heard and denied.
At
that point the parties engaged in negotiations which culminated in appellant
pleading no contest to count 1, but not to the great bodily injury
allegation, in exchange for a sentence not to exceed four years. The trial court then dismissed the great
bodily injury allegation as well as counts 2 and 3. In a letter to the court dated
September 20, the public defender argued that the granting of probation
would be an appropriate disposition.
At
the October 4 sentencing hearing, the district attorney asked the court to
impose a four year sentence. Finding
appellant statutorily ineligible for probation in the absence of unusual
circumstances, and that there were no such circumstances, the court denied
probation and imposed the four-year midterm.
At
that point appellant told the court, “I’m confused on everything right
now. I don’t know what’s going onâ€
because he “totally disagree[d]†with the district attorney’s description of
his offense, which was not what “I admitted to the police.†Furthermore, appellant said, “I just don’t
understand why I’m being denied probation.â€
Claiming he had been “railroaded†by his attorney, who led him to
believe he would get probation with time served, appellant stated that he
wished to withdraw his plea. The court
denied the motion to withdraw.
The
court sentenced appellant to state prison
for four years, with 179 days presentence credit (a 156 actual days with 23
credits pursuant to section 2933.1), and ordered a $300 fine pursuant to
section 290.3.
At
a restitution hearing held on November 17, the court ordered victim
restitution in the amount of $1,658.91, payable to the Victim Compensation
Board.
On
November 2, together with his notice of appeal, appellant filed a request
for a certificate of probable cause, the substance of which is set forth,
filed a second notice of appeal
stating that the appeal was based on the sentence or other matters occurring
after the plea that do not affect the validity of the sentence. (Cal. Rules of Court, rule 8.304(b)).
FACTS
At
approximately 2:30 a.m. on May 2, 2010, Jane Doe was walking home
from a party in Oakland, at which she had about four alcoholic drinks and
ingested an intoxicating inhalant, or “popper.â€
Appellant, who was leaning against a paint store, told Doe to “come
here,†but she refused and kept
walking. After appellant called to her
again, and she again said “no,†appellant grabbed her by the shoulder with his
other hand down toward her waist and said something like, “Fuck you! I’m going to fuck you†and started pulling
down her jeans. Because Doe’s jeans were
zipped, they could not be pulled down further than mid-thigh. Her underwear remained fully on. According to the police report of the
incident described in the probation report, at the time appellant pulled down
Doe’s pants he also pulled down his own, exposing his erect penis. When Doe tried to fight back appellant
punched her in the face several times.
Doe told the officer who appeared at the scene that she then “blacked
out and could not recall what happened next.â€
When
Doe started screaming, appellant put his hand over her mouth, which she bit
while continuing to scream. Appellant
then began punching Doe with his closed fist, telling her: “Shut up, bitch. Shut up.â€
Appellant hit Doe at least five times, bruising her but not breaking any
bones. As appellant was grabbing and
punching her, Doe continued resisting.
A
woman named Trish found Doe on the curb, helped her pull up her pants, and
called an ambulance. Doe was taken to
Highland Hospital where she was interviewed by Detectives Wright and
Percy. Doe had two black eyes, her
entire face was very swollen, and her left eye remained shut for several
days. The swelling went down after about
a month, but bruises remained at the preliminary hearing, which took place
almost two months after the assault, as did a large cut over her right eye.
Appellant
acknowledged his wrongdoing but maintained that he committed nothing more than
a simple battery. He told the probation
officer that he had been intoxicated, had a problem with alcohol, and wished to
participate in a rehabilitation program.
During the sentencing hearing, and in connection with a subsequent
motion to withdraw his plea, appellant argued that the charges were
overstated. Objecting to the district
attorney’s characterization of his vehicle as a “rape van,†he allowed that it
was large vehicle that had shades on it, it did not have tinted windows, and it
was parked across the street from the location of the altercation. Relying upon the medical report, appellant
also argued that Doe’s pants fell down during the struggle because they were
loose or “baggieâ€, and Doe had not told the two detectives that he had “pulledâ€
her pants down.
The
written request for a certificate of probable cause appellant submitted after
he was sentenced, which the trial court denied on November 3, states in
its entirety as follows:
“Judge
did not put in writing or on record that I needed to be in any type of program
nor did judge referred [sic] me to any program, in which seemed unfair in
dening [sic] probation. I was denied a
Marsden motion to replace counsel for ineffective assistants [sic]. Counsel failed to raise issue that complaining
witness admitted to being on drugs and alcohol and admitted on record also that
she don’t remember what she told the police.
Counsel failed to raise issue that arresting officer and witness
testimony and statement would of [sic] proved that greater crime didn’t take
place. Counsel failed to argue and
suppress evidence and to convince courts that crime was a mere simple assault
and not an assault with intent. Counsel
failed to argue that complaing [sic] witness testimony wasn’t credible due to lack
of memeory [sic] and being lead [sic] by the district attorney at the
prelimanary [sic] hearing. Counsel
failed to argue that defendant was denied [the right] to cross examine either
witness or arresting officer during prelimanary [sic] hearing. Counsel failed to argue that there[’]s no
d.n.a. evidence on victim or defendant[‘s] cloth[ing], only evidence of battery
and nothing more.â€
DISCUSSION
Where,
as here, an appellant has pled not guilty or no contest to an offense, the
scope of reviewable issues is restricted to matters based on constitutional,
jurisdictional, or other grounds going to the legality of the proceedings
leading to the plea; guilt or innocence are not included. (People
v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Nothing
in the record before us indicates appellant was mentally incompetent to stand
trial or to understand the admonitions he received from the court prior to
entering his plea, and to thereupon enter a knowing and voluntary plea.
The
admonitions given appellant at the time he entered his plea fully conformed
with the requirements of Boykin v.
Alabama (1969) 395 U.S. 298 and In
re Tahl (1969) 1 Cal.3d 122, and his waiver was knowing and voluntary.
The
record contains a factual basis for the plea.
The
sentence imposed is authorized by law.
The
only other inquiry we need make is whether the denial of appellant’s pre-plea
ground that appointed counsel provided ineffective assistance, was arguably
erroneous. Having examined the entire
record,—including, of course, the sealed transcript of the Marsden hearing and all other sealed documents—we conclude that
denial of appellant’s motion was proper.
Appellant was at all times represented by competent counsel who
protected his rights and interests.
Our
independent review having revealed no arguable
issues that require further briefing, the judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Lambden, J.
name="_ftn1" title=""> [1]
All subsequent statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
The relevant facts are based on evidence and other information produced at the
preliminary hearing, the sentencing hearing, and set forth in the probation
report.
