P. v. Garris

Filed 8/31/09 P. v. Garris CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant appeals from the sentence imposed following his guilty plea and strike admission. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days and he submitted a letter to his attorney, which the attorney forwarded to this court. The letter alleges ineffective assistance of trial counsel, and coercion in the plea negotiations.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record and defendants letter, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.

PROCEDURAL BACKGROUND

On May 23, 2008, defendant was charged by information with attempted robbery. A prior prison term commitment and a prior strike conviction were also alleged. (Pen. Code 664/211/212.5, subd. (c); 667.5, subd. (b), 667, subds. (b)-(i)/1170.12.)[1] The prior strike allegation was predicated on a juvenile adjudication of an assault with a deadly weapon (a knife) committed by defendant when he was 16 years old or older. On May 27, 2008, defendant pleaded not guilty and declined to waive time.

On July 16, 2008, defendants case was sent to the courtroom of the Honorable Paul Bernal for trial. Judge Bernal indicated that if the parties were to negotiate a disposition, he would impose a sentence of 32 months. Defendant declined to bargain, and stated that he need[ed] to waive a little bit of time and go pro per due to his dissatisfaction with his attorney. The court construed defendants request to represent himself as a motion to replace counsel. Out of the presence of the district attorney, a hearing was held pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). When defendants motion to replace counsel was denied, the court explored with defendant whether he would be prepared to proceed in propria persona in six days, on the following Monday. Defendant indicated that he would not be ready for trial without a continuance, and defendants request to represent himself was denied as well, pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta).

When proceedings resumed in open court, the district attorney proffered an amended information that added a charge of violating section 422. Defendant then informed his attorney and the court that he would take the deal. Defendant was advised that his maximum exposure was seven years. The parties stipulated that a factual basis for the plea was contained in the police reports and the preliminary hearing. Defendant was advised of, and waived, his constitutional rights. He was advised of the immigration and other consequences of his plea, including fines and fees. Defendant stated that he was entering his plea freely and voluntarily, and that no threats or promises had been made to him to change his mind. Defendant pleaded guilty to the charge of attempted robbery and admitted the prior strike juvenile adjudication.

On September 12, 2008, the date set for sentencing, defendant orally moved in proper for a hearing on dismissal of his prior strike adjudication pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defense counsel argued the motion on defendants behalf. The district attorney argued against it. The court considered the motion and denied it.

As promised, the court sentenced defendant to 32 months in state prison, as follows: for the attempted robbery, defendant was sentenced to the low term of 16 months ( 213, subd. (B)(2)(b)), doubled pursuant to the Three Strikes law. The prior prison term was stricken in the interests of justice. In addition, the court imposed a restitution fine of $400; a suspended parole revocation fine in the same amount ( 1202.4, 1202.45); a security fee of $20; a criminal justice administration fee of $129.75; a $10 fine plus penalty assessment pursuant to section 1202.5; and an order to give DNA and print samples. The court also awarded custody credits. Timely notice of appeal was filed.

STATEMENT OF FACTS[2]

On October 12, 2007, at approximately 8:30 p.m., San Jose Police Officer Gustavo Vega was responding to a radio call concerning a weapon when he was flagged down in the area of First and Santa Clara Streets by an individual surnamed Brandon who stated that he had just been assaulted. While Officer Vega was talking to Mr. Brandon, he received word via police radio that an arrest had been made at a different location. He drove with Mr. Brandon to the location where the suspect was being detained. As they drove up to the location, Mr. Brandon stated without prompting thats him one hundred percent. Officer Vega confirmed that Mr. Brandon was talking about the individual who was with police officers, defendant.

At approximately the same time, San Jose Police Officer Aubrey Parrott responded to a disturbance involving a weapon in Cesar Chavez Park. Sweeping the park with his spotlight, Officer Parrott did not see anything, but he soon received an update that the suspect, a tall male wearing a red jersey and a white baseball hat, was running towards the bus station about three blocks away. No one matching that description was at the bus station, but one of a group of people standing on the corner told him that a person matching that description had come by them two seconds ago and pointed Officer Parrott in a westerly direction. Parrott drove a short way and saw a tall individual walking rapidly. As he got closer, Parrott could see that the man was wearing a white T-shirt, a white baseball hat, and was carrying a large jersey-like red shirt in his left hand. Officer Parrott made contact with him and told him to stop. At about that time, other officers joined him.

After Mr. Brandon identified defendant, Officer Vega drove him back to the location where the assault had occurred and took Mr. Brandons statement. Brandon told Officer Vega that he had been standing on the light rail platform on Second Street when all of a sudden someone came up behind him and asked for change. At first, Brandon did not react, but then the individual more loudly asked for change again. Brandon turned to face the individual. At that point, the individual punched Brandon on the left side of the face. After that, the individual lifted his shirt and pulled out what Brandon thought was a gun. Lifting the other side of his shirt, the individual said Ill kill you and Ive been shot and I have bullets. Brandon was scared and thought he might be shot. The individual apparently left, and Brandon followed him through an alley between First and Second Streets from a distance while calling 911. Officer Vega confirmed that Mr. Brandons face had a slight redness to the left side of his face, but no other visible injuries.

San Jose Police Sergeant Hartaj Johal was dispatched to the area of South First and East Santa Clara Streets at approximately 8:20 p.m. in response to a weapons call but in fact the event unfolded pretty rapidly as the suspect was moving throughout the downtown area towards Almaden and Santa Clara where defendant was ultimately apprehended. Dispatch kept giving updates, [s]o when Officer Parrott made the stop Sergeant Johal headed over to Santa Clara and Almaden. He asked other officers who also responded to the scene of the arrest to retrace defendants path to see if he had dropped a weapon. Officer Law found a starter gun less than half a block from the location of defendants arrest along the route described by Officer Parrott. Starter guns look just like real revolvers. Sergeant Johal arrested, processed, and booked defendant. At the preprocessing center, Sergeant Johal looked at defendants body and saw two gunshot wounds on his lower abdomen.

Defendantsfingerprints were found on thestarter pistol.

According to the probation officer, defendant said that he had been downtown with a friend when victim Brandon began staring at him crazy. Due to the defendant being on crutches and recovering from 14 gunshot wounds, the defendants friend approached Brandon. The defendant stated he observed his friend slap Brandon in the face and threaten him with a gun. However, the defendant then told his friend to bounce, so he fled the scene on foot. The defendant denied ever approaching the victim and stated he could not have committed the present offense because of his injuries.

DISCUSSION

On January 28, 2009, appointed counsel filed a Wende brief in this court. That same day we sent a letter notifying defendant of his right to submit a written argument in his own behalf within 30 days. On February 24, 2009, the court received a written letter from defendant in which he stated that he asked numerous times to be represented by someone other than the public defender who was assigned to his case, or to represent himself. He asserts that he was denied his rights to be represented by a different attorney and to represent himself. He is aggrieved because a public defender was assigned to his case nine months after his arrest, and only one month after his preliminary hearing. He was forced to go to trial only one and one-half months after the preliminary hearing with an attorney who did not have enough time to prepare to fight for him in trial.

The appellate record reflects that defendant first appeared with a public defender about 10 days after his arrest; that he proceeded to waive time for undisclosed reasons until after his preliminary hearing and arraignment on the information some seven months later; and that his eventual trial counsel, Thompson Starkey, appeared with defendant for the first time at that arraignment.[3] Defendant did not have an unqualified right to be represented by any particular appointed attorney (Harris v. Superior Court (1977) 19 Cal.3d 786; Marsden, supra, 2 Cal.3d 118), and the record does not reflect that any of his attorneys were unprepared to defend him, or that he had a special relationship with any of them.

Defendant also complains that from their very first meeting, Attorney Starkey tried to talk me into taking a deal[,] stating that if I did not I was going to prison for a long time [and] there was nothing that he could do about that. When defendant explained that he did not commit the crime, Starkey replied that whether I committed the crime or not, Im still going to prison period. Defendant then lost confidence in trial counsel and defendant informed him that he wanted someone else to represent him. They argued about whether defendant had a right to a different attorney or a right to represent himself. According to defendant, trial counsel told him that he would make sure I would lose if I didnt cooperate with what he was saying.

Thereafter, the judge and trial counsel seemed bent on forcing me into taking a deal. Off the record they drilled me on how I should take the deal, that it was either that, the deal or go to trial [and] get more time. [] Every time the judge [and] my public defender would team up on me like that, it was off the record [and] the D.A. was asked to leave the room.

The judge also told him he had one week to prepare for trial if he wanted to represent himself. Defendant told the judge that was not enough time to prepare himself, but the judge reiterated that was his only option. Defendant considered it a lose-lose situation.

None of defendants off the record conversations with his trial counsel or the trial judge are reflected in the record on appeal, and therefore cannot serve as a basis for reversal on appeal. Moreover, the record on appeal including the transcript of the Marsden hearing fails to demonstrate ineffective assistance of counsel. Given the evidence adduced at the preliminary hearing, and the charge and allegations faced by defendant, we cannot say that in advising defendant to negotiate a favorable disposition, counsels representation fell below an objective standard of reasonableness under prevailing professional norms. (In re Resendiz (2001) 25 Cal.4th 230, 239.) Nor does the record reveal a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendants right to effective assistance of counsel. (People v. Robles (1970) 2 Cal.3d 205, 215.)

The trial court properly denied defendants Marsden and Faretta motions. Defendant was adequately informed of his constitutional rights and waived them. He was adequately informed of the consequences of his pleas and admissions. The trial court properly denied defendants Romero motion. Defendants sentence was not rendered unconstitutional by virtue of its enhancement, pursuant to the Three Strikes law, through use of a juvenile adjudication. (People v. Nguyen (2009) 46 Cal.4th 1007.) Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record. We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)

DISPOSITION

The judgment is affirmed.

__________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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[1] Unless otherwise indicated, all statutory references are to the Penal Code.

[2] This factual summary is drawn from the preliminary hearing transcript, the sealed Marsden hearing transcript, and the probation report.

[3] Defendant appeared in court with Public Defender Franco on October 22, 2007. Franco requested a continuance (which was granted) and asked that defendants bail be reduced. Bail reduction was denied. Defendant waived the right to have a preliminary hearing within 60 days. Defendant appeared again with Attorney Franco on November 19, 2007, December 10, 2007, and December 31, 2007. On the latter date, defendant waived arraignment on an amended complaint that added the prior strike conviction, waived the right to a preliminary hearing within 60 days of the filing of the amended complaint, and unsuccessfully moved for bail reduction again. On January 28, 2008, Attorney Franco appeared but defendant did not. On February 1, 2008, defendant again appeared with Attorney Franco and a bail reduction was once again denied. On February 28, 2008, defendant appeared with Public Defender Saban. On March 13, 2008 defendant appeared with Attorney Franco and bail reduction was again denied. He appeared again with Attorney Franco on April 24, 2008. On May 13, 2008, Public Defender Alvarez represented defendant at the preliminary hearing.

On May 27, 2008, defendant appeared with Public Defender Thompson Sharkey, waived arraignment on the information, pleaded not guilty, and declined to waive time. On July 14, 2008, defendant appeared with Public Defender Delgado. On July 15, 2008, defendant appeared with Mr. Starkey, and the matter continued to trail from day to day while the court waited for a courtroom and a new district attorney to become available for trial. Defendant made Marsden and Faretta motions on July 16, 2008. Following denial of those motions, defendant changed his plea on July 16. He was represented by Mr. Starkey.