P.v . Kekaula
Filed 1/7/09 P.v . Kekaula CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Appellant, v. KWAME KEKAULA, Defendant and Appellant. | F054400 (Super. Ct. No. BF112553A) OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Jerold Turner, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On November 14, 2005, a complaint was filed in the Kern County Superior Court charging appellant, Kwame Kekaula, with, in count 1, a violation of Health and Safety Code section 11359 (possession of marijuana for sale); in count 2, a violation of Health and Safety Code section 11378 (possession of a controlled substance for sale); and, in count 3, a violation of Penal Code section 12021, subdivision (a)(1) (felon in possession of a firearm). It was further alleged that a principal was armed with a firearm in the commission of the offense charged in count 1 (Pen. Code, 12022, subd. (c)) and that appellant was armed with a firearm in the commission of the offenses charged in count 2 (Pen. Code, 12022, subd. (a)(1)).
On February 24, 2006, following full advisements of his rights, Kekaula waived preliminary examination. On March 1, 2006, an information was filed reflecting the same charges alleged in the complaint. On March 8, 2006, Kekaula was arraigned; he pled not guilty and denied the allegations.
On April 7, 2006, Kekaula filed a motion to suppress evidence pursuant to Penal Code section 1538.5. On May 2, 2006, the trial court granted the motion. On June 1, 2006, the trial court dismissed the case on its own motion.
The People appealed. On July 11, 2007, the remittitur on appeal was filed in the superior court. The previous order granting the motion to suppress was vacated.
On September 28, 2007, Kekaula withdrew his not guilty pleas and pled nolo contendere to count 1, violation of Health and Safety Code section 11359, and to count 2, violation of Health and Safety Code section 11378. He admitted being in possession of a firearm pursuant to Penal Code section 12022, subdivision (a)(1), only as to count 1. The remaining count and allegation were dismissed on the Peoples motion.
The trial court found that the plea was free and voluntary. On October 31, 2007, the court denied Kekaula probation and sentenced him to state prison for an aggregate term of three years with three days of custody credit.
On December 4, 2007, Kekaula filed a notice of appeal.
On December 19, 2007, appellant filed a request for a certificate of probable cause on the sole ground that the search and seizure was illegal. On the same date, the trial court issued the certificate of probable cause.
FACTS[1]
Officers searched Kekaulas residence pursuant to his probation search conditions and discovered marijuana and methamphetamine. They also found scales, packaging materials, currency, and a 9mm handgun. Kekaula admitted that everything found in the house was his and admitted to having sold marijuana from his residence for approximately one year.
DISCUSSION
A.
Certificate of Probable Cause
Before reaching the merits of this appeal, we must address the Peoples contention that the appeal should be dismissed because appellant failed to strictly follow the requirements of Penal Code, section 1237.5.[2] (See People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez) [holding that an appellant has to strictly meet the requirement of section 1237.5].)
Section 1237.5 provides:
No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:
(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.
The People contend that Kekaula has not strictly met the requirements of section 1237.5 because he sought a certificate of probable cause on the sole ground that the search and seizure of his home was illegal, a contention that this Court had previously rejected in a prior appeal.[3] The People acknowledge that, in People v. Hoffard (1995) 10 Cal.4th 1170, 1177 (Hoffard), the California Supreme Court held that [s]ection 1237.5 does not expressly limit the issues that this Court can consider on appeal. However, the People contend that section 1237.5 does require that appellant identify a non-frivolous ground for appeal, which he has not done.
In response, Kekaula contends that the People have not identified any statute, rule, or decisional authority that would confer upon this Court authority to review the issuance of a certificate of probable cause. Rather, Kekaula contends that section 1237.5 was intended to weed out frivolous appeals at the trial court level. (See Mendez, supra, 19 Cal.4th at p. 1095.) Kekaula also contends that Hoffard permits a trial court to issue a certificate of probable cause upon any grounds, even upon a ground not stated in the defendants written statement. (See Hoffard, supra, 10 Cal.4th at p. 1177 [We also note the statute requires the defendants statement, but not the trial courts certificate, to state grounds for appeal. The trial court is not required to certify the particular issues .] Finally, Kekaula contends that, even if the People could challenge the issuance of a certificate of probable cause, the People forfeited their right to challenge the issuance of the certificate of probable cause by failing to object or to seek a writ of mandate. (Cf. People v. Cole (2001) 88 Cal.App.4th 850, 860 fn. 3 [noting that a defendant can challenge an order denying a certificate of probable cause by way of a petition for a writ of mandate].)
We need not reach the issue about whether the People can challenge the issuance of a certificate of probable cause because we agree with Kekaula that the People have waived their right to raise such a challenge by failing to object or to file a petition for writ of mandate. We do note that the California Supreme Court has admonished the superior courts to carefully consider the issuance of a certificate of probable cause. (See People v. Pannizon (1996) 13 Cal.4th 68, 89, fn. 15 [[W]e admonish trial courts to carefully evaluate whether a defendant has shown reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings justifying a certificate of probable cause. ( 1237.5, subd. (a).) For the goal of judicial economy to be realized, it is critical that trial courts rigorously perform their duty to screen out frivolous or vexatious appeals before time and money are spent preparing the record and the briefs for consideration by the appellate courts.].) Thus, we will address the merits of the appeal.
B.
Waiver of Rights Prior to Plea
On appeal, Kekaula contends that his plea should be vacated because the record is silent on whether he knowingly and voluntarily waived his right to remain silent.
In In re Tahl (1969) 1 Cal.3d 122, the California Supreme Court held that the constitutional rights against compulsory self-incrimination, to confrontation, and to jury trial must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea. (Id. at p. 132; see also Boykin v. Alabama (1969) 395 U.S. 238 [same].)[4] In People v. Howard (1992) 1 Cal.4th 1132 (Howard), the Supreme Court rejected the rule that failure to obtain explicit waivers of these three Boykin-Tahl rights required reversal regardless of prejudice. (Howard, supra, 1 Cal.4th at p. 1178.) Rather, [t]he record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances or the judgment would be reversed. (Ibid.)
After Howard, an appellate court must go beyond the courtroom colloquy to assess a claim [Boykin-Tahl] error. [Citation.] Now, if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of the entire proceeding to assess whether the defendants admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.] (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).) Prior experience with the criminal justice system, as shown in the record, is also a factor that can be considered. (Id. at p. 365.)
Here, when Kekaula entered his plea, he executed a five-page written plea agreement. This plea agreement was a form agreement that has several sections, two of which are relevant to this appeal. In the section titled CONSTITUTIONAL RIGHTS, Kekaula initialed the subsection titled 6. RIGHT AGAINST SELF-INCRIMINATION.[5] That subsection provides:
I understand that I have the right to remain silent and not incriminate myself and the right to refuse to testify. If I choose to remain silent it cannot be held against me or considered for any purpose by the jury or judge. I understand that by pleading guilty or no contest or admitting enhancements or prior convictions I am incriminating myself.
The plea agreement also has a section titled WAIVER OF RIGHTS. In this section, there are individual lines that correspond to subsections under the section titled CONSTITUTIONAL RIGHTS. Kekaula did not initial line six which provides: 6. I GIVE UP MY RIGHT TO REMAIN SILENT AND NOT INCRIMINATE MYSELF.
At the change of plea hearing, the trial court stated the following:
THE COURT: Did you read and understand all the rights on the form you initialed and signed?
THE DEFENDANT: Yes
THE COURT: Do you have any questions at all regarding any of these rights?
THE DEFENDANT: No, sir.
THE COURT: You understand when you enter your plea in this matter, whether it be guilty or no contest, you will be giving up and waiving these rights.
THE DEFENDANT: Yes.
The trial court did not reiterate the advisements or take new waivers. The trial court went on to accept appellants no contest plea to the charges.
Appellant contends that his failure to initial line 6, under the totality of the circumstances, means that he did not expressly waive his right to remain silent and thus his convictions must be vacated because his no contest plea was not knowing and voluntary. We disagree.
Under the totality of the circumstances, Kekaula was aware that entering a no contest plea meant that he waived his right to remain silent. He expressly affirmed that he was aware of his right to remain silent and that he understood that by pleading guilty or no contest or admitting enhancements or prior convictions, he was incriminating himself. At the change of hearing plea, he affirmed that he understood that he would be giving up and waiving those rights listed on the form that he read and understood. Appellant also has three prior convictions which would support an inference that he was aware that he had the right to remain silent, whether from entering a prior plea or from trial experience. (See Mosby, supra, 33 Cal.4th at p. 365.) Thus, under the totality of the circumstances, Kekaulas plea was knowing and voluntary.
DISPOSITION
The judgment is affirmed.
_____________________
Ardaiz, P.J.
WE CONCUR:
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Dawson, J.
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Kane, J.
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[1]Because a plea was entered, the Facts are based upon the probation report.
[2]All further section citations are to the Penal Code, unless otherwise indicated.
[3]We grant the Peoples request to take judicial notice of our unpublished decision in that case.
[4]Hereinafter, these three rights will be referenced as Boykin-Tahl rights and the failure to expressly waive these rights will be a claim of Boykin-Tahl error.
[5]The form agreement also has subsections on the right to jury trial (subsection 2) and the right to confrontation (subsection 5). Kekaula does not dispute that he expressly waived these rights.
