THE PEOPLE v. JOSEPH CODINHA
D077651
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
November 24, 2021
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SCD276107)
Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
In this appeal, Joseph Codinha (Appellant) raises a number of issues as a result of rulings in four separate proceedings in the trial court: (1) the denial of Appellant‘s motion to withdraw his guilty plea (
With regard to Appellant‘s motion to withdraw his guilty plea, the basis of the various arguments he raises on appeal is the contention that, at the time of the plea, his trial attorney failed to advise him regarding whether a possible consequence of his plea included an indeterminate commitment as a sexually violent predator (SVP) at the end of any prison term. As we explain, Appellant‘s presentation does not meet the standard for demonstrating ineffective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668 (Strickland): Appellant did not establish either that his attorney‘s performance fell below an objective standard of reasonableness or that he was prejudiced by the allegedly deficient performance. (See id. at pp. 687-688, 691-692.) Counsel was not obligated to advise Appellant that an SVP commitment was a possible consequence of his plea; and Appellant did not present evidence that, if he had known about the potential for an SVP commitment, he would not have pled guilty.
With regard to the motion to suppress evidence, we will not reach the merits of Appellant‘s appellate arguments. As we explain, as part of his guilty plea, Appellant expressly gave up his right to appeal the denial of his
With regard to the Pitchess motion, we have examined the sealed records from the trial court‘s in camera review. As we explain, in conducting its review, the trial court did not abuse its discretion.
Finally, as Appellant and the Attorney General agree, in the trial court‘s oral pronouncement of the sentence on count 3, the court erred by staying a
Accordingly, we will strike the enhancement and affirm the judgment.
In an amended information, the district attorney charged Appellant with four offenses which occurred on two different dates. The counts alleged, respectively: (1) felony indecent exposure (
Appellant filed a motion to suppress the drugs and drug paraphernalia evidence seized on March 28, 2018 (counts 3 & 4). (
During the pendency of the suppression motion, Appellant filed a Pitchess motion directed to the records of the police officer who arrested him on March 28, 2018 (counts 3 & 4). The court conducted an in camera review of the files produced by the custodian of records of the San Diego Police Department and determined that there were no responsive records to be disclosed.
In May 2019, after the rulings on in limine motions at trial, Appellant entered a change of plea. He pled guilty to all of the charges and admitted all of the enhancement allegations.
After changing counsel, Appellant filed a motion to withdraw his plea on the basis that he “did not understand, and was misled by his [prior] attorney [regarding], the direct consequences of his plea.” As relevant to the issues he raises on appeal, Appellant contended that he was not informed that there was a possibility that he could be deemed an SVP after completion of his sentence. The People filed written opposition, and the court held an evidentiary hearing at which the court received testimony from Appellant and from the attorney who represented him at the hearing on his change of plea. At the
The court sentenced Appellant to eight years in prison, as follows: on count 1 (
Appellant appealed from the judgment. In his notice of appeal, Appellant disclosed that the appeal would include challenges to the validity of his guilty plea and the denial of his
II. STATEMENT OF FACTS
Counts 1 and 2 arose from events that occurred on March 22, 2018, and counts 3 and 4 arose from events that occurred less than a week later on March 28, 2018. Since the case did not go to trial, we base the following factual summary on the probation report2 and Appellant‘s guilty plea.
A. March 22, 2018
On March 22, 2018, at approximately 9:00 a.m., the San Diego Harbor Police Department responded to a telephone complaint of a white male smoking a glass pipe and masturbating in a gold Cadillac sedan (with license plates identified) parked near the intersection of Shelter Island Drive and Anchorage Lane.
When the officers arrived on Shelter Island, they noticed a gold Cadillac sedan with the identified license plates parked on Shelter Island a few blocks away from Anchorage Lane. Nearby, they saw a white male—later identified
Appellant consented to a search of his car. Appearing visibly nervous and sweating, Appellant said there was a glass pipe in the center console (which, Appellant explained, belonged to a friend). A search of the vehicle revealed a glass pipe with burnt black residue in the console and a pair of boxer shorts, a towel, and two tubes of hand lotion on the front passenger seat.
In a curbside lineup, the complaining party “positively identified [Appellant] as the suspect.” Prior to the identification, the complaining party described the following events: He parked next to a gold Cadillac, which had backed into its parking space such that the two drivers’ doors faced each other. As he stepped out of his car, he saw a man sitting in the driver‘s seat of the Cadillac. The man in the Cadillac was holding a glass pipe in one hand and holding his erect penis in the other hand; and he began moving the hand on his penis up and down.
The harbor police arrested Appellant.
In pleading guilty to counts 1 (felony indecent exposure) and 2 (misdemeanor possession of drug paraphernalia), Appellant admitted under penalty of perjury:
“On March 22, 2018 I willfully, lewdly: unlawfully exposed my private parts in a public place where others were present to be annoyed, after having a previous conviction per 314(1), and having previous convictions for PC 288(a).” (Sic.)
“On March 22, 2018 I unlawfully possessed a meth pipe.” (Sic.)
B. March 28, 2018
On March 28, 2018, at approximately 9:40 p.m., San Diego Police Department officers were on patrol on Pacific Highway, an area known for the use and sales of controlled substances. Working “proactive enforcement” at a specific motel, officers saw Appellant, whom they recognized from prior contacts and arrests and knew to be a registered sex offender. As he left a room, he and a man in the doorway engaged in “a hand-to-hand exchange of items.” When Appellant noticed the officers, the other man closed the door to the room, and Appellant walked from the room to the road.
Because Appellant was wearing a large hooded sweater and baggy shorts, the officers patted him down, looking for weapons. One of the officers felt “a hard, tube[-]like object” in one of Appellant‘s pockets. When asked what it was, Appellant stated: “‘You know what it is.‘” Believing it to be a glass pipe used for smoking narcotics, the officers confiscated the object. It was a glass pipe that contained “a thick, white crystalline material,” which laboratory results later confirmed was .25 grams of methamphetamine.
The police arrested Appellant.
In pleading guilty to counts 3 (felony possession of a controlled substance) and 4 (misdemeanor possession of drug paraphernalia), Appellant admitted under penalty of perjury:
“On March 28, 2018, I unlawfully possessed methamphetamine while being a PC 290 registrant . . . [,] after having been released on bail on earlier felony case.” (Sic.)
“On March 28, 2018, I unlawfully possessed a meth pipe.” (Sic.)
III. DISCUSSION
In this appeal, Appellant challenges the following rulings of the trial court: (1) the denial of Appellant‘s motion to withdraw his guilty plea; (2) the denial of Appellant‘s motion to suppress evidence of drugs and drug paraphernalia seized on March 28, 2018, outside the motel on Pacific Highway; (3) the determination that the San Diego Police Department had no records to produce, following Appellant‘s Pitchess motion; and (4) the oral pronouncement of judgment staying the
A. Appellant‘s Motion to Withdraw His Guilty Plea
Appellant contends that the trial court erred in failing to allow him to withdraw his guilty plea. On appeal, he argues that, at the time he changed his plea to guilty, the assistance provided by his trial attorney, Michael Messina, was ineffective. Each of the issues Appellant raises is based on the legal argument that, before entering a plea on count 1 (felony indecent
1. Background
On May 7, 2019, after rulings on the parties’ in limine motions in trial, Appellant initialed and signed—and the court accepted and filed—a “Plea of Guilty/No Contest – Felony” form.3 Neither the People nor the court made any promises or concessions; Appellant pled “to the sheet“—i.e., he pled guilty to all four counts and admitted all enhancement allegations.
Among other representations, Appellant signed or initialed that he was entering his plea “freely and voluntarily” and understood that:
- he could be sentenced to prison for a term of 25 years to life;
- this case could result in “mandatory supervision“;
- he was “giv[ing] up [his] right to appeal the . . . denial of [his section] 1538.5 motion” to suppress evidence; and
- at sentencing, the court could consider his entire “prior criminal history and the entire factual background of the case.”
As particularly relevant to Appellant‘s arguments on appeal, Appellant was not asked to circle, and in fact did not circle, that Messina “explained to [him] that other possible consequences of this plea” may occur under the “Sexually Violent Predator Law.”
At the change of plea hearing, Appellant expressly confirmed that he had gone over the form with Messina and that the initials and signature on the form were Appellant‘s. After reviewing the constitutional rights Appellant would be giving up by pleading guilty, the court further received confirmation from Appellant that he understood that the court had “made no commitments with regard to sentencing.”
Under penalty of perjury, Appellant pled guilty to each count and admitted each enhancement alleged. At the conclusion of the hearing, the court accepted Appellant‘s guilty pleas and admissions, expressly finding that Appellant “knowingly and voluntarily waived his rights with knowledge of the charges and the consequences of his plea.”
The People filed written opposition. As relevant to the issues on appeal, the People argued that the potential for being deemed an SVP at the time of completion of any sentence was not a consequence of the plea for purposes of analyzing Appellant‘s understanding. In addition, the People argued that, even if Appellant should have been advised of the potential SVP proceedings, he did not make the requisite showing of prejudice, because he failed to present evidence that he would not have changed his plea had counsel advised him of the potential SVP proceedings.
At the hearing, Appellant testified to what his understanding was based on what Messina had told him, and Messina testified as to what he told Appellant.
Appellant‘s Testimony
From the time Appellant retained Messina in this case through the first day of trial, Appellant told Messina that he did not want to plead guilty to the charges.
On the morning of the first day of trial—i.e., prior to the in limine motions—Messina described to Appellant a chambers conference attended by the court, the prosecutor, and Messina. Messina told Appellant that, at the conference, “he [Messina] had struck what he called a deal . . . with the judge“: Appellant could “plead to the sheet” and leave sentencing to “the discretion of the judge.” Although Messina indicated that there were no promises from the court, he told Appellant that “the judge would not send [him] to state prison, and that [he] would probably get time served.”
Later in his testimony, Appellant more specifically explained that Messina did not tell him that the court said it would not send Appellant to prison. Appellant also confirmed that, at the hearing on the change of plea, (1) the court “very clearly on the record” stated “there were no agreements,” and (2) he understood that, from the court‘s view, “there had been no promises made.”
the time Messina gave him “the impression” that the court would not send him to prison, he ”knew” that he was facing a potential sentence of life in prison. (Italics added.)
Before making a decision regarding a change of plea, Appellant wanted to discuss Messina‘s proposal with his family. Accordingly, they proceeded to court, where in limine motions were heard.
As a result of the rulings on the in limine motion—in particular, the exclusion of an expert proposed by Appellant—Messina explained to Appellant that “we have no defense now” and encouraged Appellant “to take th[e] deal” they discussed prior to the hearing on the in limine motions.
The following morning, prior to appearing in court, Messina again recommended to Appellant that he “take th[e] deal.” Messina advised that it was “pretty useless” to go to trial, because without an expert (based on the in limine ruling), “[w]e don‘t have a defense . . . we just have nothing.” At the conclusion of their meeting, Messina advised Appellant that, if he did not “take th[e] deal” and was convicted, he “was going to go to prison 25-to-life.”
Appellant agreed to a change of plea, after which Messina filled out the form, told him to read it, and gave it to him to initial and sign.
In particular, Messina did not advise Appellant that, because there was a potential he would be sentenced to prison “on a case that‘s sexual in nature,” he “could potentially be deemed a sexually violent predator SVP” when he was released from prison. According to Appellant, SVP proceedings were “not a consideration” to him, because Messina told him that he was not going to prison. Consistently, Appellant testified that Messina never advised Appellant of the maximum sentence he could receive in this case. Rather, he understood from Messina that the sentencing judge “w[ould] not send [him] to state prison“; “[h]opefully,” Messina told Appellant, “you‘ll get time served.” Appellant would not have pleaded guilty if Messina had told him that, based on his record, he would be going to state prison.
Despite what Messina may or may not have told Appellant, as they discussed whether Appellant would change his plea, Appellant “knew” that
Messina‘s Testimony5
In more than 39 years as a criminal defense attorney, Messina had tried more than 40 cases before juries in state and federal court, including eight SVP cases. Although Messina was “fully prepared to go to trial,” for at least two reasons, he believed Appellant‘s case was not one that should go to trial.
First, on April 19, 2019, a little more than two weeks prior to the in limine motions, Appellant told Messina that, on March 22, 2018, “he [Appellant] committed the crime“; i.e., Appellant confessed that “he [Appellant] went to Shelter Island that day to masturbate.” Thus, Messina explained to Appellant that he (Messina) could not put Appellant on the stand to testify in his defense; and without Appellant‘s testimony, “all we have is the impeachment” of the complaining witness at Shelter Island for the March 22 incident and the arresting officer at the motel for the March 28 incident.
Messina explained to Appellant that “[t]his is not a good case for trial“; but, if the case is assigned to “a good judge, who I think will be fair at sentencing, we should consider a plea.” Later, when the case was assigned to a trial department, Messina told Appellant that “we have a good judge. Judge Weber is fair. . . I think she would be fair on this particular case. And I think she would be good at sentencing. And we‘d have the opportunity to limit [the] amount of time in custody.”
Messina also reminded Appellant that the last time he was sentenced for a violation of
Messina was adamant: At no time did he tell Appellant that Judge Weber either would not send him to prison or would grant him probation. To the contrary, Messina confirmed that, not only did he tell Appellant that the court had made no promises, he expressly told Appellant that he is “probably going to have to do some state prison time.”
Messina testified that he went through each line of the change of plea form, explaining to Appellant what each line meant. That said, line 7f. of the form refers to “other possible consequences of th[e] plea“; beneath line 7f., item (14) identifies “Sexually Violent Predator Law,” which is not circled; and Messina did not recall discussing with Appellant anything regarding the “Sexually Violent Predator Law” when explaining to Appellant “other possible consequences of th[e] plea.” According to Messina, he did not raise the issue, because “[section ]314 is not considered a sexually violent offense, pursuant to [section ]6500 of the
In arguing the merits of the motion, the focus was on what Messina said or did not say regarding the likelihood of Appellant prevailing at trial and the likelihood of a prison sentence in the event Appellant changed his plea to guilty. During argument, neither the attorneys nor the court mentioned the issue of Messina‘s failure to discuss whether possible consequences of the plea included the SVP law.
The court denied Appellant‘s motion, ruling that Appellant did not meet his burden. The court concluded that Messina properly advised Appellant as to both the potential outcome of a trial and the possible sentence following a guilty plea, expressly finding that, with 10 prior convictions, Appellant was a “sophisticated” defendant who was experiencing “buyer‘s remorse.”
2. Analysis
On appeal, Appellant does not challenge the trial court‘s conclusion that Messina properly advised Appellant as to both the potential outcome at trial and the possible sentence following a guilty plea. Appellant‘s argument is directed solely to Messina‘s “oblig[ation] to, at a minimum, inform [Appellant] that, when his prison sentence is completed, there could be SVP consequences that could result in a lifetime commitment.” Appellant characterizes this failure as ineffective assistance of counsel. In passing, Appellant
As we explain, Appellant did not meet his burden of establishing that Messina had a duty to advise him regarding potential SVP consequences of a change of plea.6 Thus, Appellant did not meet his burden of establishing either that Messina‘s assistance was ineffective or that the court abused its discretion in failing to make findings regarding any potential SVP consequences resulting from Appellant‘s guilty plea.
a. Ineffective Assistance of Counsel
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215, citing Strickland, supra, 466 U.S. at pp. 684-685.) This right entitles the defendant “not to some bare assistance but rather to effective assistance.” (Ledesma, at p. 215; accord, Strickland, at p. 686.)
“In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel‘s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel), citing Strickland, supra, 466 U.S. at pp. 687-692; accord, People v. Patterson (2017) 2 Cal.5th 885, 901 (Patterson).) To establish deficient performance, the defendant has the burden of showing that counsel‘s performance “‘fell below an objective standard of reasonableness . . . under prevailing professional norms.‘” (Mickel, at p. 198; accord, Patterson, at p. 900.) To establish prejudice, the defendant has the burden of showing “‘that a reasonable probability exists that, but for counsel‘s incompetence, he would not have pled guilty.‘” (Patterson, at p. 901; accord, Mickel, at p. 198.) In this context, a “reasonable probability” is a “‘probability sufficient to undermine confidence in the outcome.‘” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918, quoting Strickland, supra, 466 U.S. at p. 694.)
Appellant acknowledges that there is no California authority on the issue he presents—namely, whether, in advising the defendant on whether to plead
In Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the Supreme Court held that the Sixth Amendment requires criminal defense counsel to properly advise their noncitizen clients regarding the potential immigration consequences of their criminal cases.7 (Id. at pp. 367-368.)
In 2015, by codifying Padilla‘s requirement that defense counsel advise criminal defendants about adverse immigration consequences, the California Legislature made this “an independent statutory duty that does not require finding a violation of the Sixth Amendment.” (People v. Lopez (2021) 66 Cal.App.5th 561, 575 (Lopez), citing
immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.”9
Following Padilla, supra, 559 U.S. 356, and California statutory law (e.g.,
In the present appeal, the Attorney General argues that the Sixth Amendment only requires that the defendant be advised of the direct potential consequences of an anticipated plea, whereas the possibility of an SVP commitment is, at best, a collateral consequence since it does not “inexorably follow from the defendant‘s conviction of the offense involved in his plea.” (Citing People v. Moore (1998) 69 Cal.App.4th 626, 630 (Moore) [
In Moore, the appellate court held that, in accepting the defendant‘s guilty plea, the trial court was not required to advise the defendant as to a potential SVP commitment. (Moore, supra, 69 Cal.App.4th at p. 631.) The basis of this holding is that a trial court is required to advise defendants only of the “‘primary and direct consequences of a defendant‘s impending conviction as contrasted with secondary, indirect or collateral consequences‘” and “generally extends only to ‘penal’ consequences.” (Id. at p. 630.) The court explained:
future conviction [citation]; the possibility of probation revocation in another case [citation]; and limitations on the ability to earn conduct and work credits while in prison [citation].” (Moore, at p. 630.) The Moore court assumed without deciding that, by virtue of his plea and admissions, the defendant in that case would be referred to an initial screening under the SVP Act (“A consequence is deemed to be ‘direct’ i[f] i[t] has ‘a definite, immediate and largely automatic effect on the range of the defendant‘s
punishment.’ [Citation.] Such direct consequences include: the permissible range of punishment provided by statute [citation]; imposition of a restitution fine and restitution to the victim [citation]; probation ineligibility [citation]; the maximum parole period following completion of the prison term [citation]; registration requirements [citation]; and revocation or suspension of the driving privilege [citation]. “A consequence is considered ‘collateral’ if it ‘does not “inexorably follow” from a conviction of the offense involved in the plea.’ [Citation.] Collateral consequences include: the possibility of enhanced punishment in the event of a
Likewise, in the present appeal, where we have made the same assumption—namely, that Appellant‘s guilty plea will result in potential SVP consequences (see fn. 6, ante)—we also conclude that any commitment “would require additional steps and would depend on additional findings which would not be controlled by [Appellant‘s] plea and admissions” in this case.10
(Moore, supra, 69 Cal.App.4th at p. 632.) Thus, as in Moore, an SVP
With that background, we now consider whether Messina‘s failure to advise Appellant of the potential SVP consequences of his guilty plea was deficient—i.e., whether Messina‘s performance fell below an objective standard of reasonableness under “prevailing professional norms.” (Mickel, supra, 2 Cal.5th at p. 198; Patterson, supra, 2 Cal.5th at p. 900; see Strickland, supra, 466 U.S. at pp. 687-692.) We begin with the understanding that neither the appellate briefing nor our independent research disclosed any reported opinions that might establish “prevailing professional norms” on this issue; and neither side presented any expert testimony at the hearing. This is entirely unlike defense counsel‘s obligation to advise a defendant of potential immigration consequences of a guilty plea, where there is United States Supreme Court precedent, California Supreme Court authority, and California statutory law setting forth minimum professional standards. (Padilla, supra, 559 U.S. at pp. 367-368; Patterson, supra, 2 Cal.5th at p. 897;
We find further guidance from Padilla, supra, 559 U.S. 356. Unlike an SVP commitment in California, “as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (Id. at p. 364, fn. omitted.) In this regard, the Court expressly recognized that ” ‘[p]reserving the client‘s right to remain in the United States may be more important to the [noncitizen defendant] than any potential jail sentence’ ” and that ” ‘preserving the possibility of discretionary relief from deportation . . . “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” ’ ” (Id. at p. 368, quoting from INS v. St. Cyr (2001) 533 U.S. 289, 322, 323.) Deportation of a noncitizen criminal defendant, although civil in nature, is “enmeshed” in and “intimately related to the criminal process,” since it is “nearly an automatic result” for many offenses. (Padilla, at pp. 365-366.)
In ruling that defense counsel‘s performance is deficient if counsel fails to properly advise a noncitizen defendant client regarding the potential immigration consequences of a guilty plea (Padilla, supra, 559 U.S. at pp. 367-368), the Court expressly warned that “we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas” (id. at p. 372). To this end, Justice Alito emphasized that Padilla involved “removal,” compared to the following ” ‘seriou[s]’ ” consequences of a guilty plea that do not affect defense counsel‘s duty to the defendant: “civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses.” (Id. at p. 376 [conc. opn. of Alito, J.], italics added.) In addition, while not affecting counsel‘s duty to the client, “[a] criminal conviction may also severely damage a defendant‘s reputation and thus impair the defendant‘s ability to obtain future employment or business opportunities.” (Ibid.) The point is: Failure of defense counsel to advise the defendant of even the serious consequences associated with civil commitment proceedings is not a basis on which to set aside a guilty plea.
For the foregoing reasons, defense counsel‘s duty to advise a noncitizen defendant of the potential immigration consequences of a guilty plea does not support recognition of a new and different basis on which to attack an otherwise valid guilty plea—namely, an attorney‘s duty to advise all criminal defense clients of the potential SVP consequences of a guilty plea. The potential for SVP consequences—i.e., civil commitment—from a defendant‘s guilty plea is ” ‘secondary, indirect or collateral,’ ” not ” ‘primary and direct.’ ” (Moore, supra, 69 Cal.App.4th at p. 630.) Unlike the potential immigration consequences for a noncitizen defendant convicted of certain crimes, potential SVP consequences are neither “enmeshed” in and “intimately related to the criminal process” nor “nearly an automatic result” for many offenses. (Padilla, supra, 559 U.S. at pp. 365-366.)
In short, we are not persuaded by Appellant‘s analogy to potential immigration consequences for noncitizen defendants; and Appellant does not present any other authority in support of his position. Accordingly, we conclude that Appellant did not meet his burden of establishing that Messina had a duty or obligation to advise Appellant as to the potential SVP consequences of his guilty plea and admissions. Without such a duty, Messina‘s performance was not deficient—i.e., did not fall below an objective standard of reasonableness under prevailing professional standards.
Moreover, even if we were to assume Messina performed deficiently, Appellant did not demonstrate the requisite showing of prejudice—i.e., Appellant did not establish ” ‘a reasonable probability’ ” that, but for Messina‘s performance, ” [Appellant] would not have pled guilty. ” (Patterson, supra, 2 Cal.5th at p. 901; Mickel, supra, 2 Cal.5th at p. 198; see Strickland, supra, 466 U.S. at pp. 687-692.) Very simply, Appellant presented no
Having failed to establish both a deficient performance by Messina and prejudice as a result of Messina‘s performance (if we were to assume Messina‘s performance fell below an objective standard of reasonableness), Appellant did not meet his burden of establishing that Messina‘s assistance was ineffective under Strickland, supra, 466 U.S. 668; Patterson, supra, 2 Cal.5th 885; and Mickel, supra, 2 Cal.5th 181.
b. Section 1018
Appellant suggests that the trial court erred in not mentioning, and thus expressly ruling on, Appellant‘s claim that Messina failed to advise him regarding the potential SVP consequences of a guilty plea and admissions. We disagree.
“On application of the defendant at any time before judgment . . . the court may . . ., for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.” (
§ 1018 .) In the trial court, to prevail on a motion to withdraw a guilty plea, a defendant must establish good cause by clear and convincing evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) ” ‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea’ under section 1018.” (Patterson, supra, 2 Cal.5th at p. 894.)
We review the trial court‘s decision whether to permit a defendant to withdraw a guilty plea under
Vivar discusses only the standard that should be applied to appellate review of trial court rulings of prejudice under
Indeed, even though Vivar does require application of an independent standard of review to trial court rulings of prejudice, the Vivar court expressly limited its application of independent review to appeals from
In addition, with regard to the type of evidence on which a
We thus proceed to review the trial court‘s ruling for an abuse of discretion. (Patterson, supra, 2 Cal.5th at p. 894; Lopez, supra, 66 Cal.App.5th at p. 574.)
In any event, Appellant does not present, and our independent research has not disclosed, any authority that requires the trial court to make findings as to each argument raised in the pleadings. Further, Appellant did not request such findings as to any issue, let alone one that was not emphasized during the proceedings.
For these reasons, Appellant did not meet his burden of establishing that the trial court abused its discretion in denying his
B. Appellant‘s Motion to Suppress Drug and Drug Paraphernalia Evidence
Appellant argues that the trial court erred in denying his
1. Background
Appellant filed a motion to suppress the evidence of drugs and drug paraphernalia that was seized on March 28, 2018, outside the motel on Pacific Highway. Following an evidentiary hearing at which the arresting officer testified, the court denied the motion in October 2018. Appellant then filed, and in March 2019 the court denied, a motion for reconsideration (which, by the time of the hearing, Appellant refiled as a “renewed motion to suppress evidence” (capitalization and bolding omitted)).
Months later, during the morning of the second day of trial, Appellant pled guilty and admitted all enhancement allegations. In initialing and signing the change of plea form under penalty of perjury, Appellant expressly agreed to “give up [his] right to appeal the . . . denial of [his
Prior to accepting Appellant‘s change of plea, the court requested and received Appellant‘s confirmation under penalty of perjury that, before signing and initialing the form, he had the opportunity to go over it with Messina; and, in response to a direct question from the court, Appellant testified that he had no questions regarding the form. At the conclusion of the hearing, the court accepted Appellant‘s guilty plea and admissions after expressly finding that Appellant “knowingly and voluntarily waived his rights.”15
Appellant appealed from the judgment, and in his notice he disclosed that the appeal would include challenges to the validity of his guilty plea and the denial of his
Significantly, in his request, Appellant did not mention either the Waiver or his intent to contest the validity of the Waiver (either directly in the appeal or
“[Appellant] entered an open plea to the court on advice of prior counsel where his exposure was 50 years to Life in State Prison. [Appellant] was not properly advised of his rights and consequences prior to entering that plea and is alleging ineffective assistance of counsel. A full hearing was held regarding a motion to withdraw that plea and it was denied. [Appellant] would like to appeal that ruling as well as the 1538.5.” (Italics added.)
Not surprisingly, therefore, the court‘s order also did not mention the Waiver:
“A judgment of conviction upon a plea of guilty or nolo contendere, or an admission of violation of probation, was entered in the above-entitled case on 05/07/2019 and the defendant was sentenced on 03/13/2020. The defendant submitted a Notice of Appeal and Request for Certificate of Probable Cause on 06/19/2020. The court finds defendant has shown reasonable constitutional, jurisdictional, or other grounds for appeal relating to the legality of the proceedings and certifies that there is probable cause for an appeal from the referenced judgment.”
2. Analysis
The Attorney General argues that Appellant‘s challenge to the order denying the motion to suppress evidence is not cognizable on appeal, because Appellant waived his right to appeal the ruling in the Waiver. Anticipating this argument, in his opening brief Appellant attempts to justify his appeal despite the Waiver on the following two grounds: (1) Appellant received no consideration for the Waiver; and (2) by issuing the certificate of probable cause, the trial court determined Appellant was entitled to challenge denial of the suppression motion regardless of the Waiver.
As we explain, the Attorney General has the better view. As a general rule, obtaining a certificate of probable cause does not make cognizable issues that the defendant waived as part of a guilty plea. More specifically, in this case, by failing to disclose the express Waiver to the trial court in his request for a certificate of probable cause, Appellant may not argue on appeal that the Waiver was ineffective or unenforceable or that the generic certificate of probable cause issued by the trial court otherwise affected the Waiver.
Absent specified exceptions, a criminal defendant may appeal “from a final judgment of conviction.” (
Thus, without more Appellant would have been entitled to appellate review of the order denying his
We begin with the understanding that ” ‘it is well settled that a plea bargain may include a waiver of the right to appeal.’ ” (Mashburn, supra, 222 Cal.App.4th at p. 943, quoting People v. Buttram (2003) 30 Cal.4th 773, 791 (Buttram) [conc. opn. of Baxter, J.].) We continue with the understanding that Appellant does not suggest that the Waiver was other than knowing, intelligent, and voluntary. (See People v. Panizzon (1996) 13 Cal.4th 68, 83-84 (Panizzon) [without more, the waiver of the right to appeal is knowing,
We now must determine the effect, if any, of the certificate of probable cause on the Waiver. To this end, Mashburn, supra, 222 Cal.App.4th 937, is particularly instructive.
Like Appellant here, the defendant in Mashburn was charged with possession of methamphetamine and possession of a device for smoking a controlled substance. (Mashburn, supra, 222 Cal.App.4th at p. 940.) Like Appellant here, the defendant in Mashburn filed a motion to suppress the seized drugs and related evidence (
Unlike Appellant here, the defendant in Mashburn did not seek a certificate of probable cause, and the appellate court dismissed the appeal on this basis. (Mashburn, supra, 222 Cal.App.4th at p. 941.) As we explain, however, the reasoning in Mashburn is nonetheless applicable here. That is because, like Appellant here, the defendant in Mashburn failed to obtain a certificate of probable cause as a “challenge to the validity of the waiver of the right to appeal in the plea bargain“—regardless of the expressed intent to seek appellate review of the denial of a
In Mashburn, despite the defendant‘s notice of appeal stating that the appeal was based on the denial of a
Applying this standard in Mashburn, the court dismissed the appeal for failure to have obtained a
Likewise, here too, Appellant‘s challenge to the denial of his motion to suppress may only be heard if the Waiver is unenforceable—which, according to Mashburn, supra, 222 Cal.App.4th at page 943, “is an issue regarding which [Appellant] was obligated to obtain a certificate of probable cause.” (Accord, Buttram, supra, 30 Cal.4th at p. 793 [conc. opn. of Baxter, J.], quoted at fn. 19, ante.) Accordingly, the lack of a certificate of probable cause as to the enforceability of the Waiver precludes appellate review of the issue of the denial of the
Thus, under Mashburn, supra, 222 Cal.App.4th 937, Appellant‘s certificate of probable cause—based on the request that Appellant “would like to appeal . . . the 1538.5“—had no effect on the appeal. That is because the substance of Appellant‘s appeal is a challenge to the Waiver, which Appellant would have to overcome before he could obtain appellate review of the order denying his
We are not persuaded by Appellant‘s attempt to distinguish Mashburn, supra, 222 Cal.App.4th 937.
First, Appellant argues that he only waived the right to appeal the denial of his
Appellant next focuses on the differences between the pleas in the two cases. In Mashburn, the defendant‘s plea was what Appellant characterizes as “negotiated“—i.e., in exchange for the defendant‘s plea to one count, the prosecutor moved to dismiss (and the trial court dismissed) another count and a separate criminal case. (Mashburn, supra, 222 Cal.App.4th at p. 940.) By contrast, in the present case, Appellant pled guilty to all counts with no promises as to sentencing. According to Appellant, “[his] waiver of the right to appeal his motion to suppress was a unilateral step for which he received no benefit. But for that waiver, [he] would have been allowed to appeal the denial of that motion even without a certificate of probable cause.”
In sum, Appellant‘s request for and receipt of a certificate of probable cause as to the
C. Appellant‘s Pitchess Motion
Appellant asks this court to independently examine the sealed records of the police officer who arrested him on March 28, 2018, in order to determine whether the trial court abused its discretion in denying disclosure of the documents produced in camera. The Attorney General does not oppose this request.
Appellant filed a Pitchess motion directed to six categories of documents related to the police officer who arrested him on March 28, 2018 (counts 3 & 4).22
At the hearing on the motion, the court and the parties all agreed that the records at issue were those which provided “information on the credibility, veracity, [and] integrity” of the arresting officer. After lengthy oral argument (and a concession by Appellant that one of the categories of requested documents was overbroad), the court ruled that Appellant had met his initial burden and agreed to review the records in camera. The court then conducted an in camera review of the files produced by the custodian of records of the San Diego Police Department.23 At the conclusion of the court‘s review of the files, the court stated that it had “reviewed in their entirety the contents of each of the file folders and documents handed to the court” by the custodian of records and concluded the in camera proceedings. Upon returning to the courtroom, the court ruled that, “Having conducted an in camera hearing, the court determines that no records of the nature sought are to be disclosed” and concluded the Pitchess motion proceedings.
2. Analysis
In Pitchess, supra, 11 Cal.3d 531, our Supreme Court ruled that, upon a sufficient showing, a criminal defendant may obtain access to law enforcement personnel and complaint files. In the opinion, the court set forth several rules to guide practitioners and trial courts as to discovery of such files. (Ibid.) The court has described this procedure as “in essence a special instance of third party discovery.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045.)
After Pitchess, the Legislature made personnel records of peace and custodial officers confidential, setting forth procedural conditions for obtaining discovery of these records or information from
On appeal, Appellant asks this court only to review the files produced by the custodian of records to determine whether the trial court abused its discretion by failing to turn over anything contained in the police department‘s files.
We have independently reviewed in camera the documents produced by the custodian of records of the San Diego Police Department and conclude that the trial court did not abuse its discretion in denying the requested discovery. (See Rodriguez, supra, 193 Cal.App.4th at p. 366 [after independent in camera review of the records, appellate court determines whether trial court “abuse[d] its discretion in denying discovery of the records“].)
D. Striking the Stayed One-Year Sentence Enhancement
Appellant contends that the court erred, as a matter of law, in staying (rather than imposing or dismissing) the one-year enhancement based
The Attorney General agrees, further relying on a January 1, 2020 amendment to
1. Background
As part of his plea in May 2019, Appellant admitted the February 2006 prison prior alleged in the amended information. By this admission, Appellant was subject to a one-year enhancement for each of the felony convictions. (
At the sentencing hearing in March 2020, in its oral pronouncement, the court struck this enhancement as to count 1 and stayed it as to count 3. Inconsistently, the court‘s minute order reflects that the enhancements for the prison prior under
2. Analysis
As we explain, regardless of Langston, supra, 33 Cal.4th 1237, due to a change in the law, Appellant was not subject to the one-year sentence enhancement on count 3.
Senate Bill No. 136 (2019-2020 Reg. Sess.; Stats. 2019, ch. 590, § 1), effective January 1, 2020, amended former
As alleged in the amended information, Appellant admitted that his prison prior was for the February 2006 conviction of
The court sentenced Appellant on March 13, 2020—i.e., after the effective date of Senate Bill No. 136‘s amendment to
With regard to the discrepancy between the oral pronouncement (enhancement stayed) and the judgment or abstract (enhancement not imposed), the oral pronouncement controls. (People v. Leon (2020) 8 Cal.5th 831, 855; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) The oral pronouncement, therefore, must be stricken, since it is erroneous as a matter of law. (
For the foregoing reasons, we will strike the court‘s oral pronouncement staying the
The trial court‘s March 13, 2020 oral pronouncement staying the
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O‘ROURKE, J.