P. v. Bellett
Filed 4/18/13 P. v. Bellett CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN ROBERT
BELLETT,
Defendant and Appellant.
E056764
(Super.Ct.No. RIF151602)
OPINION
APPEAL
from the Superior Court of
County. Ronald L.
Taylor, Judge. (Retired judge of the
Riverside Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Marilee
Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
On July 23, 2009, a felony complaint charged defendant and appellant
John Robert Bellett with burglary
(Pen. Code, § 459, count 1);
name="_ftnref1" title="">[1] petty
theft with a prior (§§ 666, 484, subd. (a), count 2); making
exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)).
On August 13, 2009, counsel indicated that there was a negotiated
settlement. Defendant asked for a
because he had his own business wherein he needed to clear things up before his
incarceration. Defendant asked the court
for two to three weeks to take care of his business. The court stated that it understood
defendant’s request, but that the trustee could take care of the legal matters
that needed to be resolved, and there was no need for defendant to be physically
present. The court also noted that
defendant’s mother had passed away in January and assumed that defendant had
already paid his respects as it was eight months since her death. The court told defendant that it did not
believe it was a good idea to release him on a Cruz waiver because if defendant failed to show up, he would be
sentenced to the maximum term. Defendant
reiterated his reasons for requesting the waiver. The court then informed defendant that he
should speak with his trustee because it was not inclined to grant defendant’s
request.
Thereafter,
the court asked whether defendant wanted to go forward; defendant responded
that he did. Defendant answered
affirmatively that he went over the plea forms and understood his rights and
the consequences of his plea. Defendant
then pled guilty to counts 1 and 3.
Defendant also admitted that on July 7 and July
11, 2009, he willfully entered a building with the intent to commit a theft. The prosecutor asked whether it was true that
on July 7, 2009, defendant willfully and unlawfully with the specific
intent that his statement be taken as a threat, threatened Timothy T., in
violation of section 422. Defendant
replied yes. The court found that the
plea was free and voluntary. The court
asked whether defendant wanted to set sentencing a few weeks down the road so
that he could meet with the trustee in jail.
Defendant, however, requested immediate sentencing.
The
trial court sentenced defendant to two years in state prison for count 1, and
eight months in state prison for count 3.
The court imposed a restitution fine of $200 and a parole revocation
fine, stayed upon successful completion of parole, of $200. The court also imposed a $35 court security
fee, a $30 conviction fee, and a $387.97 booking fee. The remaining counts were dismissed.
On June 15, 2012, defendant filed a petition for writ of error
he had “allegedly†entered a plea to criminal threats at a time which he was in
substantial emotional distress and was advised within the time frame of his
mother passing away. According to
defendant, he personally requested a continuance based on distress and
incompetence. He alleged that he then,
“by no competent means, entered any knowing plea to terrorist threats,†and was
not sufficiently advised of the nature and consequences of such plea.
On
the same day, the court denied the petition, finding that defendant failed to
show due diligence in seeking relief and did not allege that he only recently
discovered that his guilty plea was involuntary or that he was incompetent at
the time he entered his guilty plea, nor did he explain why he delayed three
years in seeking relief.
On July 19, 2012, defendant filed a notice of appeal from the denial
of his petition for writ of error coram
nobis.
After defendant appealed,
and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386
U.S. 738, setting forth a statement of the case, a summary of the facts and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We
offered defendant an opportunity to file a personal supplemental brief, and he
has filed two. In his 15-page
handwritten brief filed on January 25, 2013, defendant argues, in
essence, that (1) he was entitled to a hearing on his competency at the time of
the plea; (2) the evidence is insufficient to support his guilty plea as to
count 3; and (3) his counsel rendered ineffective assistance of counsel
(IAC). Also, in his 10-page handwritten
brief with exhibits filed on March 20, 2013, defendant appears to be
arguing the same contentions again: (1)
he was incompetent at the time he pled guilty; (2) his counsel rendered IAC;
and (3) he is entitled to a hearing on his mental competency. We shall address defendant’s contentions.
We note that this is not an appeal from the judgment in
2009; instead, this is an appeal from the denial of defendant’s petition
for writ
of error coram nobis. A petition
for writ
of error coram nobis is reviewed
under the standard of abuse of discretion.
(People v. Tuthill (1948) 32
Cal.2d 819, 821; People
156.)
A motion
to vacate a judgment based on coram nobis
principles may be granted “‘only when the
petitioner can establish three elements:
(1) that some fact existed which, without his fault or negligence, was
not represented to the court at the trial and which would have prevented the
rendition of the judgment; (2) that the new evidence does not go to the merits
of the issues of fact determined at trial; and (3) that he did not know nor
could he have, with due diligence, discovered the facts upon which he relies any
sooner than the point at which he petitions for the writ. [Citations.]’
[Citations.] ‘The writ lies to
correct only errors of fact as distinguished from errors of law.’†(People
v. Ibanez (1999) 76 Cal.App.4th 537, 544-545 [Fourth Dist., Div. Two],
quoting People v. Sharp (1958)
157 Cal.App.2d 205, 207.)
In
this case, there is clearly no new evidence.
The only contention is that defendant lacked the mental capacity to
plead guilty. Here, defendant pled
guilty to counts 1 and 3, as detailed ante,
on August 13, 2009. Almost three years later, on June 15, 2012, defendant filed a petition for writ of error
nothing in either of defendant’s personal briefs as to why it took almost three
years to challenge his competency. The
trial court, in denying defendant’s petition, gave these reasons: “Based on the petition and the court’s
record, the court finds that defendant has failed to show due diligence in
seeking relief. (People v. Kim (2009) 45 Cal.4th 1078, 1096-97; People v. Shipman (1965) 62 Cal.2d 226, 230.) Defendant does not allege that he only
recently discovered either that his guilty plea was involuntary or that he was
incompetent at the time he entered his guilty plea. (See People
v. Brady (1973) 30 Cal.App.3d 81, 86.)
Neither does he explain why he delayed for almost three years in seeking
relief.†We agree, and we hold that the
trial court did not abuse its discretion in denying defendant’s petition for
writ of error coram
Nonetheless,
even if we were to look at defendant’s competency issue, we note that the
transcript of the hearing shows that defendant asked thoughtful questions
regarding his Cruz waiver, had
meaningful discussions with the court regarding his request for a
occasions that he wanted to go forward with his guilty plea and sentencing
hearing. In fact, the court allowed
defendant to speak on the Cruz waiver
request. Defendant stated: “The reason I have asked for a
that the death of my mother. Even if
it’s not a physical presence issue, it’s a respect issue for my family. And also, the record would indicate that I
have previously—I do have a long record, but I have been through a drug program
sober living house. And I did graduate
parole. [¶] And most importantly, I have established my
own business, and I kind of need to, you know, clear that up if I am going to
be absent for three and a half years.
And if there is any possibility that I could get two, three weeks. And you know, like I said, I am off parole
and there are things to clear up.†There
is nothing in the transcript to indicate that defendant was not competent at
the time he pled guilty. Moreover, other
than defendant’s own statements indicating incompetency, defendant has produced
no evidence to document any alleged incompetence at the time of his guilty
plea. We find no merit to defendant’s
argument.
Defendant
also seems to be arguing that the petition should have been granted because
there was insufficient evidence to support a guilty plea as to count 3. In his first personal brief, defendant states
that “the § 422 offense [count 3—criminal threats] is specious and
reconstruction of the offense should be juxtaposed to validate the mental state
and ineffective assistance contentions.â€
Again, this is an appeal from the denial of his petition for writ of
error coram nobis—not from the judgment.
As
provided ante, defendant has failed
to meet the requirements of the writ. However, even if we were to address the
sufficiency of the evidence, we first note that defendant failed to obtain a
certificate of probable cause to address the merits of his guilty plea. Moreover, during the hearing wherein
defendant pled guilty, defendant admitted that he “willfully and unlawfully
with the specific intent that [his] statement be taken as a threat,
threaten[ed] Timothy T., in violation of Penal Code Section 422.†Defendant cannot—three years after pleading
guilty—allege that there is insufficient evidence to support his guilty plea.
Next,
we address defendant’s IAC claim. Again,
we note that this is an appeal from the denial of defendant’s petition for writ
of error coram nobis, which was filed almost three years after defendant pled
guilty. As previously noted, defendant
has failed to meet the requirements to succeed on his petition.
Notwithstanding,
even if we were to consider defendant’s IAC claim, we find it without
merit. In order to establish a claim of
IAC, defendant must demonstrate, “(1) counsel’s performance was deficient
in that it fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient representation prejudiced the
defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s
failings, defendant would have obtained a more favorable result. [Citations.]
A ‘reasonable probability’ is one that is enough to undermine confidence
in the outcome. [Citations.]†(People
v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases,
668; accord, People v. Boyette (2002)
29 Cal.4th 381, 430.) Hence, an IAC
claim has two components: deficient performance and prejudice. (Strickland
v. Washington, at pp. 687-688, 693-694; People
v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either
component, his claim fails.
When a claim of ineffective
assistance is made and the record does not show the reason for counsel’s
challenged actions or omissions, the conviction must be affirmed unless there
could be no satisfactory explanation. (
426.)
In this case, defendant
appears to be arguing that counsel rendered IAC because she failed to conduct
an investigation to prove defendant’s innocence as to count 3 (making criminal
threats). The evidence, however, does
not support defendant’s claim.
At the hearing on August 13,
2009, prior to pleading guilty, defendant acknowledged that he had gone over
the terms of the plea agreement and
the rights he was giving up with his attorney, and that his attorney had
answered all the questions he had regarding his plea. Defense counsel also agreed that defendant
and counsel had discussed the plea agreement and defendant had understood what
he was pleading guilty to and what he was giving up. The court also asked defendant if he wanted
to ask him any questions concerning his legal and constitutional rights. Defendant responded “no.†Moreover, the court asked if there was
anything else defendant wanted to speak with his counsel about; again, the answer
was “no.†Thereafter, defendant admitted
that he “willfully and unlawfully with the specific intent that [his] statement
be taken as a threat, threaten[ed] Timothy T., in violation of Penal Code
Section 422.†Not once in the entire
transcript did defendant show hesitation in pleading guilty or question his
counsel’s representation. Then, almost
three years after the plea, defendant decides to argue that his counsel
rendered IAC—with nothing but his own self-serving statement that more
investigation would have yielded a different result. We disagree.
There is nothing in either of defendant’s supplemental briefs to support
his claim.
Based on the above, we find
that defense counsel did not render assistance below an objective standard of
reasonableness under prevailing professional norms.
Pursuant
to the mandate of People v. Kelly
(2006) 40 Cal.4th 106, we have conducted an independent review of the record
and find no arguable issues.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We
concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the Penal Code unless
otherwise indicated.
name="_ftn2" title=""> [2]
