P. v. Elam

Filed 6/30/08 P. v. Elam CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

William Carlo Elam (appellant) appeals from a judgment entered after he pled guilty to assault with force likely to produce great bodily injury. Appellants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and has not filed such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

Factual and Procedural Background

An information was filed on August 21, 2007, charging appellant with assaulting his daughter, Jane Doe (Jane), with a deadly weapon (Pen. Code,  245, subd. (a)(1)[1]) (count one), assaulting her with force likely to produce great bodily injury ( 245, subd. (a)(1) (count two), and battering his son, John Doe (John) ( 242) (count three).[2]

According to a probation report, appellants two adult children, Jane and John, went to the Sebastopol Police Department to report that their father, appellant, had battered them. Jane told the police that she went to appellants house with her brother John and a friend to retrieve her boyfriends fishing pole. Appellant confronted Jane and accused her of stealing. When Jane denied it, appellant struck her in the face, causing her to black[] out. When she regained consciousness, appellant was repeatedly striking her with his wooden cane. John told the police that he tackled appellant in order to save Jane, and that appellant punched him in the eye during a struggle.

Appellant pled guilty to count two and the court dismissed counts one and three. At the sentencing hearing, appellant moved to withdraw his guilty plea. The court denied the motion and placed appellant on probation for three years under various terms and conditions, including an eight month jail sentence. Appellant filed a timely notice of appeal.

Discussion

We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. Section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . 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. Appellant filed a written statement but did not receive a certificate of probable cause. Thus, he is precluded from arguing on appeal that his plea was invalid.

In any event, a defendant who wishes to withdraw a guilty plea must make a showing of good cause to do so by clear and convincing evidence. (See People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) There is no such evidence here.

The record shows that appellant initialed and signed written waiver forms acknowledging he understood his constitutional rights and was freely and voluntarily giving up those rights. He stated he understood that his maximum exposure for the charge to which he was pleading guilty was four years in state prison. At the beginning of the plea hearing, the court noted that appellant had signed the waiver forms and asked him whether he had any questions at this time about the rights youre giving up or the consequences of the plea. Appellant responded, No, sir. The court set out its understanding of the plea agreement and asked appellant, Is that your understanding also . . . thats what you would be doing? Appellant responded, Yes, sir. The court then asked, [W]hat is your plea to [the] charge that you violated section 245(a)(1) of the Penal Code as alleged in Count II as a felony in that you did willfully and unlawfully commit an assault upon the woman listed as Jane Doe with means of force likely to produce great bodily injury . . .? Appellant responded, Guilty. His attorney joined in the plea and waiver.

In attempting to withdraw his guilty plea during the sentencing hearing, appellant stated in part: I was under the influence of medication, your Honor, and I wasnt coherent to understand the charges that were being filed against me, due to the fact that I was on prescribed medication and I was going through symptoms of withdrawal. However, there is nothing in the record supporting appellants position that he lacked the ability to knowingly and voluntarily enter his plea. To the contrary, the written waiver forms and the above communication between the court and appellant show he was alert, responsive, and aware of the consequences of his action.

In his unsuccessful request for a certificate of probable cause, appellant asserted his plea was invalid because the judge who presided over his case was biased. Because this allegation involves information outside the record, it is beyond the scope of this appeal. In any event, the record does not support a finding that the judge was biased, or that appellant was prejudiced by having his case heard by that judge.

Appellant also contended that his plea was invalid because his attorney led him to believe he was pleading guilty to not the 245(a) but a lesser charge. However, the record shows he knew he was pleading guilty to section 245, subdivision (a)(1). The waiver form he signed clearly specified he was pleading guilty to PC 245(a)(1) felony assault with force likely to inflict great bodily injury. Further, as noted, he responded, Guilty, when asked by the judge what his plea was to the charge that he had violated section 245(a)(1). Appellant also suggested that his attorney provided him with ineffective assistance of counsel by failing to file motions critical to [the] defense and failing to conduct an adequate investigation. Appellant has not made the requisite showing that his attorneys performance fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. (People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, and In re Wilson (1992) 3 Cal.4th 945, 950.)

We conclude there is no clear and convincing evidence of good cause to allow appellant to withdraw his guilty plea. Appellant was adequately represented by counsel at every stage of the proceedings and appeared at every hearing. There was a factual basis for the guilty plea. There was no sentencing error. There are no issues that require further briefing.

Disposition

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

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[1] All statutory references are to the Penal Code.

[2] As the trial court did below, we refer to the victims by their pseudonyms Jane Doe and John Doe.