P. v. Wright

Filed 2/17/09 P. v. Wright 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This appeal is taken from appellants attempted murder conviction and sentencing following a plea of nolo contendere. Appellants court appointed counsel has asked this court for an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436 and has noted two potential issues on appeal pursuant to Anders v. California (1967) 386 U.S. 738: first, that the trial court may have erred in denying appellants request to sentence him in accordance with the terms of his original plea bargain, and secondly, that the trial court may have erred in refusing to award credits for time spent in state hospitals pursuant to Penal Code section 1368.

BACKGROUND

On January 30, 2002, appellant pleaded no contest to one felony count of attempted murder (Pen. Code,  664/187, subd. (a), further references are to the Penal Code unless otherwise specified) and admitted the allegation pleading an enhancement for great bodily injury inflicted under circumstances involving domestic violence ( 12022.7, subd. (e)). Initially, appellant had been charged with three felony counts arising from an incident on October 23, 2001. Count one was a felony count of attempted murder ( 664/187, subd. (a)), count two was a felony count of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), and count three was a felony count of corporal injury to a spouse/cohabitant ( 273.5, subd. (a)). Counts one and three were serious felonies within the meaning of section 1192.7, subdivision (c)(8).

Appellant has a history of filing motions pursuant to People v. Marsden (1970) 2 Cal.3d 118. Over the course of the proceedings, he filed over 20 Marsden motions and changed attorneys several times. Appellant filed his first Marsden motion following his initial plea of not guilty on October 31, 2001. The court denied the motion on December 5, 2001, but a subsequent Marsden motion was granted on December 21, 2001. New counsel was appointed prior to appellants change of plea on January 30, 2002.

The January 30 plea agreement was entered into prior to the preliminary hearing, and by its terms appellant pled no contest to count one and accepted an indicated sentence of 10 years in state prison. The prosecution moved to dismiss the other charges. The trial court admonished appellant regarding his rights and found that appellants admission was freely, intelligently, and voluntarily made and that the factual basis for the plea was established by stipulation.

On April 18, 2002, the prosecution requested that the plea bargain be withdrawn and the plea set aside. The court granted the motion. On April 22, 2002, the court also granted appellants third Marsden motion and appointed new counsel on April 24, 2002. On May 15 2002, the prosecution amended the complaint to reflect an additional allegation that appellant had two serious prior felony convictions in Contra Costa County.

During the subsequent preliminary hearing, on August 1, 2002, appellant was held to answer on counts one ( 664/187) and two ( 245, subd. (a)(1)). Count three ( 243, subd. (d)) was dismissed at the request of the prosecution. On August 7, 2002, the prosecutor filed an information with charges identical to the amended May 15, 2002 complaint. Subsequently, appellant filed three more Marsden motions, two of which were granted.

On September 2, 2003, appellant made another Marsden motion. However, the court deferred ruling on the motion and suspended criminal proceedings against appellant pending a section 1368 competency evaluation. The court appointed two psychologists to evaluate appellants competency to stand trial. While the court waited for the results of the psychological examination, appellant filed another Marsden motion, which was granted on October 28, 2003. New counsel was appointed on October 29, 2003, and appellant immediately filed another Marsden motion, which was denied on November 6, 2003.

Also on November 6, 2003, the trial court reviewed the psychologists reports and found appellant not competent within the meaning of Penal Code section 1368. On December 10, 2003, appellant was committed to Napa State Hospital. On the same date, the court denied a subsequent Marsden motion. On June 2, 2004, the court granted another Marsden motion and counsel was replaced on June 4, 2004.

On July 19, 2004, the court denied appellants next Marsden motion as being without grounds. On September 1, 2004, appellants counsel sought to be relieved because appellant refused to speak with the attorney; and the court denied the request. A subsequent Marsden motion was granted on September 29, 2004, and new counsel was appointed on October 5, 2004. On October 14, 2004, appellant filed a new Marsden motion, which was denied after a hearing the following day.

On October 19, 2004, court proceedings were again suspended and doctors were again appointed to evaluate appellant pursuant to section 1368. On December 8, 2004, the court reviewed the doctors reports and found appellant not competent. The court denied appellants next Marsden motion on December 13, 2004; and on January 12, 2005, appellant was re-committed to Napa State Hospital pursuant to section 1370.

On April 5, 2005, the Napa State Hospital certified that appellant had been restored to competency. The evaluation conducted at the hospital stated that appellants history of Marsden motions was not due to a mental illness; and that appellant was malingering in order to avoid prison time by feigning mental illness. Appellants next Marsden motion was denied on April 19, 2005. At the same hearing, appellants counsel requested a court trial on the issue of competency. On January 20, 2006, appellants subsequent Marsden motion was denied. The court held a court trial on the issue of competency on January 30, 2006, and found appellant incompetent; he was sent to Atascadero State Hospital.

On August 4, 2006, Atascadero State Hospital certified appellant as competent and able to stand trial. On August 24, 2006, the court granted appellants next Marsden motion and appointed new counsel. On October 12, 2006, the court found appellant competent and reinstated the criminal proceedings.

On October 18, 2007, appellant withdrew his previous pleas and pled not guilty by reason of insanity to all counts. The court appointed doctors to evaluate appellants sanity pursuant to section 1026. On November 29, 2007, appellant withdrew his plea of not guilty by reasons of insanity and filed a motion to reinstate his previous no contest plea of January 2002. The court granted appellants motion on January 9, 2008, and reinstated appellants plea of nolo contendere to the original charge of attempted murder together with the alleged section 12022.7 enhancement, but without restriction to the original indicated sentence. On February 1, 2008, the court amended the charging document to reflect the change from allegations of a section 12022.7, subdivision (e), to a section 12022.7, subdivision (a) enhancement.

Appellant was sentenced to a total term of 12 years on February 7, 2008. The sentence was calculated based on nine years for count one ( 664/187) and three years for the enhancement ( 12022.7, subd. (a)). Appellant also received credit for time served. Appellant was awarded 2296 actual days along with 298 conduct credits, for a total of 2594 total credit days.

DISPOSITION

We have reviewed the entire record and find no arguable issues on appeal. Substantial evidence supported the trial courts finding of appellants competence to stand trial. Appellant was represented by counsel throughout the proceedings and was properly informed of his constitutional rights more than once.

The trial court has broad discretion to withdraw its prior approval of a negotiated plea at any time up until sentencing. (People v. Tung (1994) 30 Cal.App.4th 1607, 1611; People v. Stringham (1988) 206 Cal.App.3d 184, 188.) The trial court may permissibly do so if, after further consideration, it concludes that the bargain is not in the best interests of society or upon becoming more fully informed about the case. (People v. Stringham, supra, at pp. 199-200.) The discovery of changed circumstances, including additional information about a defendants prior record, is sufficient for the trial court to withdraw its approval of a negotiated plea. (People v. Thomas (1994) 25 Cal.App.4th 921, 925.)

The trial court did not abuse its discretion by withdrawing approval of the original January 30, 2002 plea agreement. The plea agreement was entered into before any preliminary hearing and before appellants two serious prior felonies were discovered. It was therefore within the trial courts discretion to set aside the original plea bargain upon discovery of appellants prior felony record.

In addition, the record reflects that appellant did receive all the credits due to him for time spent in state mental hospitals pursuant to sections 1368 and 2685. Appellant was awarded 2296 days of actual credit. The actual credit days reflects the entire time spent in custody from the date of the offense on October 23, 2001, until the date of sentencing on February 7, 2008. There is no evidence in the record that appellant was denied credits for time served in state mental facilities.

Accordingly, we find no arguable issues on appeal and the judgment is affirmed.

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Lambden, J.

We concur:

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Kline, P.J.

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Richman, J.

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