P. v. Laramore

Filed 10/11/07 P. v. Laramore CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Megan Doreen Laramore timely appeals from a March 29, 2007 judgment sentencing her to two years in prison after she pled no contest to violating Health and Safety Code section 11377, subdivision (a) by possessing methamphetamine, and after she admitted violating probation three times. In her notice of appeal, defendant contends that the trial court erred in denying her motion to withdraw her plea because her plea was involuntary in that counsel left her no choice but to enter her no contest plea by refusing to consider her explanations in prep[a]ration for a trial defense.

Defendants appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. Counsel has also advised defendant of her right to file a supplemental brief, which defendant has not done. We have reviewed the entire record and agree with counsels assessment. We conclude that the trial court did not abuse its discretion in denying defendants motion to withdraw her plea. (People v. Weaver (2004) 118 Cal.App.4th 131, 146 [denial of a motion to withdraw a plea is reviewed under the abuse of discretion standard].) We also conclude that there is no issue warranting further briefing.

The following facts are from the probation officers report. On June 21, 2006, police officers went to defendants residence to contact Richard Stepp in connection with a domestic violence incident the day before in which defendant had been the victim. No one responded after the officers rang the doorbell several times and called out to defendant. The front door was open; they heard what sounded like a females voice moaning, and also a male voice. The officers entered the residence to do a welfare check. They found defendant and Stepp in an upstairs bedroom. They placed Stepp under arrest for the domestic violence incident.

While walking Stepp out to the patrol car, Stepp told the officers that defendant had some dope in her room. When the officers asked defendant if she had any narcotics in her bedroom, she at first did not answer. After the officers told her that she had a search clause as a condition of her parole, defendant stated, There might be some on the counter. In defendants bathroom, the officers found a picture frame and two small bags which contained a total of .64 gram of methamphetamine. Defendant told the officers that the drugs were not hers, but belonged to Stepp. The officers observed that she appeared to be under the influence of a controlled substance.

On June 22, 2006, a complaint was filed alleging that defendant and Richard Stepp had violated Health and Safety Code section 11377, subdivision (a), a felony, by possessing methamphetamine. The complaint also alleged that defendant had a prior prison conviction, also for violating Health and Safety Code section 11377, subdivision (a). (Pen. Code,  667.5, subd. (b).)

On July 5, 2006, defendant pled no contest to the single count of the complaint with the understanding that she was to be sentenced under the provisions of Penal Code section 1210 (Proposition 36) if she were found eligible. Also as part of the plea, the prior prison conviction was stricken. On July 7, 2006, the trial court found defendant was eligible for sentencing pursuant to Penal Code section 1210 and granted defendant probation for 36 months.

On September 8, 2006, defendant brought an oral Marsden[1] motion which was denied. Defendants grounds for the motion were that her appointed counsel had not explained the consequences of her plea very well, that she did not have a lot of time to discuss the fact that she wasnt guilty with her counsel, and that she had been a little intimidated by Richard [Stepp] threatening [her] that hell do things . . . if he goes to . . . prison. Her appointed counsel told the court that defendant had previously expressed all of these concerns to him and that they had discussed these concerns a dozen times maybe. The trial court concluded that defense counsel was not incompetent because if the jury did not believe defendant and found her guilty, she would have a problem because of her extensive criminal record. Defendant agreed that her counsel was not incompetent and declined to represent herself.

On November 28, 2006, defendant brought a motion to withdraw her no contest plea pursuant to Penal Code section 1018, which provides in pertinent part that a court may for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Defendants ground for the motion was that she feared her co‑defendant, Stepp, who had abused her. However, in his moving papers, defense counsel admitted that defendants fear was not based on any verbalized threat by Stepp. Defense counsel argued instead that as a documented victim of domestic violence, the Defendant knew exactly what was required of her. After [defendants] plea had been consummated, and [Stepp] had been freed from the risk of prison, the Defendant immediately began to assert the innocence that she had previously denied.

At no point during defendants testimony at the hearing on the motion did she state that Stepp had threatened her regarding entering a plea, nor did she state that she had entered into her plea because she feared Stepp. Defense counsel asserted that because defendant had been the victim of three prior batteries by Stepp, even if shes not willing to admit that she was afraid [of Stepp], . . . in fact, she was under duress . . . and she was being coerced. The trial court properly denied the motion, noting that there was no evidence that defendants plea had anything to do with fear of Stepp and concluding that the defenses argument was speculative. (See People v. Weaver, supra, 118 Cal.App.4th at pp. 145-146 [ The burden is on the defendant to present clear and convincing evidence  of good cause for withdrawal of the plea, and when  a defendant is represented by counsel, the . . . denial of an application to withdraw a plea is purely within the discretion of the trial court ].)

On December 7, 2006, on January 4, 2007, and again on February 5, 2007, defendant admitted violating probation by missing a drug test, by testing positive for methamphetamine on four separate occasions, and by leaving a drug test without providing a sample.

On March 29, 2007, defendant was sentenced to the middle term of two years in state prison for violating Health and Safety Code section 11377, subdivision (a). The trial court also ordered defendant to comply with Penal Code section 296 (blood and saliva samples), imposed a restitution fine of $400 (Pen. Code, 1202.4, subd. (b), 1202.45), and imposed a court security fee of $20 (Pen. Code, 1465.8). Defendant received presentence credit for 63 actual days in custody, plus 30 days of local conduct credit, for a total of 93 days.

Defendant filed her notice of appeal after her request for a certificate of probable cause was granted on April 17, 2007.

DISPOSITION

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

[1]People v. Marsden (1970) 2 Cal.3d 118.