P. v. Galland

Filed 2/5/08 P. v. Galland CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Craig E. Robison, Judge. Affirmed.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.)

Defendant Anthony Andrew Galland hand wrote his request for a certificate of probable cause which was granted: I entered plea mislead by my Attorney, O.C. Pub. Def. Ardalon Fakhimi, he told me I would receive 25 years to life if I pled not guilty, he wouldnt give me, or let me have a Marsden motion, and if I ask the judge for a Marsden hearing Id be beat up by the Orange County Sheriff at Court, he refused from [line unreadable] I called his office at least 30 times from O.C.J. with no reply. At court he told me I could get this matter dismissed with a P.C. 1538.5 due to the fact my search and seizure rights were violated, but, then he said since Im a repeat offender, my 4th Amendment Rights dont mean JACK SQUAT! I was coerced and under duress. So, I plead guilty I tried to talk to Attorney Fakhimi, but he repeatedly said to me, I wish youd shut your big Yapper! Plus, many other things which need the help of an Appeals Attorney to tell the Court about. Ive got a disorder which prevents me from communicating properly, Thank You Your Honor. IM INNOCENT! [] August 4th, 2006.  Respectfully Submitted [] ANTHONY A. GALLAND. The trial court issued a certificate.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on Gallands behalf. Counsels brief lists two potential issues: Was appellant properly advised of his constitutional rights before the taking of his guilty plea? and Did appellant receive ineffective assistance of counsel?

Included in counsels brief is an attorney declaration stating counsel advised defendant the brief had been filed and that defendant may personally file a supplemental brief raising any issues he wants to call to the courts attention. Counsel sent defendant a copy of the record on appeal and informed him counsel would remain available to brief any issues requested by the court.

Defendant requested of this court and was granted three extensions to file a supplemental brief. The last extension was granted on September 7, 2007, defendant was given until November 28, 2007. At that time, this court informed defendant we would not entertain any further extension requests. No supplemental brief having been filed, this court ordered the cause submitted on December 3, 2007.

In the felony complaint filed on May 26, 2006, defendant was charged with possession of a forged drivers license, identification card to facilitate forgery, identity theft, forgery of an official seal and second degree burglary. On June 9, 2006, a four-page felony guilty plea form was filed. Defendants initials appear throughout all four pages and what appears to be his signature is on the last page under a statement which says: I understand each and every one of the rights set forth above in this advisement and waiver of rights form. I waive and give up each of those rights in order to enter my guilty plea. I am entering a guilty plea because I am in fact guilty and for no other reason. I declare under penalty of perjury I have read, understood, and personally initialed each numbered item above, and I have discussed them with my attorney. I declare under penalty of perjury everything on this form is true and correct. I understand the signing and filing of this form is conclusive evidence I have pled guilty to the charges listed on this advisement and waiver of rights form. [] Executed in Orange County, California. [] Dated: 6-9-06 [] Signed: [defendants signature].

The form states the maximum total punishment defendant faced was three years and eight months. It describes defendants right to an attorney, right to a preliminary hearing, right to a jury trial, right to confront and cross-examine witnesses, right to testify or remain silent, right to present evidence, immigration consequences to pleading guilty, a Fourth Amendment waiver and the proposed disposition of his case for two years and eight months. Handwritten on the guilty plea form is a statement: In Orange County, California, on 5/24/06 I attempted to use the personal identifying information of another for an unlawful purpose. I also entered Banco Popular with the intent to commit a larceny therein.

The defense attorney signed the following statement on the form: I am the attorney of record for defendant. I have explained to defendant each of the rights set forth on this form. I have discussed the charges and the facts with defendant. I have studied the possible defenses to the charges and discussed those possible defenses with defendant. I also have discussed the possible sentence ranges and immigration consequences with defendant. I also have discussed the contents of this form with defendant. I concur with defendants decision to waive the rights set forth on this form and to plead guilty. No promises of a particular sentence or sentence recommendation have been made to defendant by me, or to my knowledge by the prosecuting attorney or the court, which have not been fully disclosed on this form. I agree that this form may be received by the court as evidence of defendants advisement and voluntary, intelligent, knowing, and express waiver of the rights set forth on this form.

As soon as the judge called the matter, defendant was asked by the court: Did you have a chance to go over the document I am showing you with your attorney, your lawyer? Defendant responded, Yes. Before the court told defendant the consequences of his plea, the court asked defendant whether or not he had any questions about his constitutional rights. Defendant responded, No. The court then carefully explained each right of the defendant and ascertained that he understood them. At that, the court inquired whether defendant was pleading guilty freely and voluntarily. Defendant responded, Yes. The court found defendant intelligently and voluntarily waived his legal and constitutional rights.

The court read aloud the factual statement handwritten on the guilty plea form and asked defendant whether or not those facts were true. Defendant responded Yes. Defendant then pled guilty to identity theft and second degree burglary. Defendant was sentenced to the midterm of two years for the burglary and one-third of the midterm, or eight months, for identity theft, a total sentence of two years and eight months in prison.

Waiver of constitutional rights

Under long and well-established principles, a trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea. [Citations.] (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.) A plea in a felony case cannot be accepted without an affirmative showing that it was intelligent and voluntary. (Boykin v. Alabama (1969) 395 U.S. 238, 242.) Before Boykin, it was well established that a valid guilty plea presupposed a voluntary and intelligent waiver of the defendants constitutional trial rights, which include the privilege against self-incrimination, the right to trial by jury, and the right to confront ones accusers. [Citations.] The new question that the high court addressed in Boykin was whether it was permissible to infer such a waiver from a silent record. (People v. Howard (1992) 1 Cal.4th 1132, 1175-1176.)

The defendant in In re Tahl (1969) 1 Cal.3d 122, 124 contended the trial court failed to inform him of the nature and consequences of his guilty plea, and that he at no time expressly waived his right to a jury trial or any other constitutional right. The California Supreme Court rejected his argument and explained: [R]ather than simply presuming from the presence of counsel that petitioner had been informed of his rights, the court specifically ascertained from petitioner that he had in fact conferred with counsel as to his rights and the nature of his plea to the charge. (Id. at p. 129, fn. omitted.) [E]ach of the three rights mentionedself-incrimination, confrontation, and jury trialmust 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.)

[W]e emphasize that explicit admonitions and waivers are still required in this state. We also reaffirm our caveat in Tahl that trial courts would be well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waivers of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record. [Citation.] (People v. Howard, supra, 1 Cal.4th at p. 1179.)

In this case, the trial court thoroughly inquired of defendant before making the finding defendant knowingly and voluntarily waived his constitutional rights. We note once more the courts inquiry did not begin until after defendant read and signed the guilty plea form after his initials were placed next to each of his rights. First the court held up the guilty plea form. Next the court asked defendant if he went over the contents of the form with his lawyer. At that point, the court asked defendant if he had any questions. After defendant said he had no questions, the court went over each of defendants constitutional rights and asked whether or not defendant understood them. Defendant said he did. The court asked defendant if he was freely and voluntarily entering his guilty plea, and defendant said he was. At that point, the court made its finding defendant intelligently and voluntarily waived his constitutional and legal rights. We find the record reflects defendant knowingly and voluntarily waived his constitutional rights when he pleaded guilty.

Ineffective assistance of counsel

In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation] Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Williams (1997) 16 Cal.4th 153, 214-215.) If the defendant fails to establish either component by a preponderance of the evidence, the claim of ineffective assistance fails. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)

To demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was unreasonable when measured by prevailing professional norms and that there is a reasonable probability that but for counsels unreasonable acts or omissions, the result of the proceeding would have been more favorable. [Citations.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] If the record does not disclose why counsel acted or failed to act in the manner challenged, then, unless counsel was asked for and failed to provide an explanation or there could be no satisfactory explanation, we reject the claim on appeal and affirm the judgment. Under such circumstances, the claim is more appropriately made in a petition for habeas corpus. [Citation.] (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.)

Notwithstanding the accusations contained in defendants request for a certificate of probable cause, there is nothing in the record of the guilty plea proceedings that in any way indicates any deficient performance by defense counsel. The record on appeal demonstrates counsel discussed the ramifications of a guilty plea.

Assuming there had been some deficient performance by counsel, which we do not find, defendant suffered no prejudice. The court carefully and completely discussed defendants rights with him. Defendant stated under penalty of perjury he understood the proceedings and had discussed them with his lawyer. Defendant initialed the handwritten factual statement. And after the court read the factual statement aloud, defendant told the judge it was a true statement of facts. Had defendant not pleaded guilty, he faced at least an additional year in prison.

We find counsels performance was not deficient, and defendant suffered no prejudice. Under these facts, we cannot conclude defendant should prevail on a claim of ineffective assistance of counsel in this case.

I

DISPOSITION

We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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