People v. CodinhaPeople v. Codinha
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 section 1538.5 motion, and the trial court‘s certificate of probable cause as to the section 1538.5 motion did not affect his waiver.
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 section 667.5, subdivision (b) one-year enhancement. As we explain, due to a change in the law after Appellant‘s guilty plea and before Appellant‘s sentencing, at the time of sentencing Appellant was no longer subject to the one-year sentence enhancement based on a prior prison term.
Accordingly, we will strike the enhancement and affirm the judgment.
I. STATEMENT OF THE CASE
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 (
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 conclusion of the hearing, the court denied the motion, finding that, at the time Appellant pled guilty, “he was properly advised.”
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 section 1538.5 motion to suppress evidence. He also requested a certificate of probable cause, which the court granted.
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.
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 as Appellant—and informed him that someone had seen him smoking a glass pipe and masturbating. He denied the accusation, though admitted he had been arrested previously and was a registered sex offender. A records check confirmed that Appellant was a registered sex offender in compliance with his registration requirements.
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
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.
Based on the officers’ experience, they believed Appellant was at the motel to purchase a controlled substance. On that basis, they approached him. Appellant confirmed his identity and stated that he “had just been arrested for a previous ‘314.’ ”
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
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 section 667.5, subdivision (b) one-year sentence enhancement on count 3. As we explain, we will strike the stayed enhancement and affirm the judgment.
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
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 received4
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.”
Weeks later, Appellant changed counsel, who on Appellant‘s behalf filed a motion to withdraw the guilty plea. According to the motion, Appellant “did not understand, and was misled by his [prior] attorney [regarding], the direct consequences of his plea.” The principal focus of Appellant‘s argument was that, based on what Messina told Appellant, Appellant “believed the court would give him credit for time served and probation“; i.e., Appellant understood that he “would not be sen[t] to . . . State Prison.” In passing, and without argument or legal authority, Appellant also mentioned that Messina did not advise him of “the potential to be deemed a Sexually Violent Predator after his sentence is complete.”
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.”
Significantly—and consistent with his change of plea form and his testimony at the change of plea hearing4—Appellant testified that, even at
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
Despite what Messina may or may not have told Appellant, as they discussed whether Appellant would change his plea, Appellant “knew” that this “was filed as a 25-to-life case, on each count.” Consistently, based on the language in the change of plea form, as he initialed and signed the form, Appellant “knew” that he would be facing a potential sentence of “life in prison.” Appellant further understood that “there were no deals from the Court on sentencing” at the time he pled guilty. Finally, in response to questioning from the court, Appellant expressly acknowledged: In the last 20 years, no sentencing judge had granted him probation, instead sentencing him to prison, based on his prior record; and his prior conviction for violating section 288 (lewd or lascivious acts) “is a conviction for life,” with the resulting strike remaining on his record forever.
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
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 section 314, even though the trial court struck the priors, it nonetheless sentenced him to seven years in prison—which “was a very good result.” Messina further advised Appellant that, if he goes to trial with only impeachment evidence as a defense, given the prior sentence, Messina was “worried” that the court would sentence Appellant to more than seven years this time.
Second, based on the court‘s May 6, 2019 rulings on in limine motions, Messina explained to Appellant “the difference between pleading now and admitting guilt and asking for the judge to strike strikes, versus going to trial with no defense and facing life in prison.” (Italics added.)
Messina was adamant: At no time did he tell Appellant that Judge Weber either would not send him to prison or would grant him
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 Welfare & Institutions Code,” which contains “the law on sexually violent predators.”
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.”
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 also suggests that, by failing to refer to Messina‘s failure to advise Appellant regarding potential SVP consequences from a guilty plea, the trial court abused its discretion in denying Appellant‘s motion.
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.)
Appellant acknowledges that there is no California authority on the issue he presents—namely, whether, in advising the defendant on whether to plead guilty to a charge, defense counsel has an obligation to inform the defendant that, when the potential prison sentence is completed, there could be SVP consequences that could result in a lifetime commitment. Instead, he analogizes potential SVP consequences to potential immigration consequences, where under federal and state law, defense counsel must provide such advice to the defendant. As we explain, the analogy is inapt.
In Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the Supreme Court held that the Sixth Amendment requires criminal defense counsel to
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
There are no similar statutes or indications of a legislative intent that require defense counsel to advise their clients of the potential SVP consequences of the clients’ guilty pleas.
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
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:
“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
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 (
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 commitment “will not be an ‘immediate’ or ‘inexorable’ result of [Appellant‘s] plea and admissions in this case.” (Ibid.)11
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
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
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,
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 evidence that, had he been advised of the SVP consequences of a guilty plea and admissions, he would not have changed his plea. Indeed, Appellant acknowledges that the record lacks such evidence; and we reject Appellant‘s suggestion that the evidence of Appellant “having sought to withdraw his [guilty] plea when he realized he might not get probation” is evidence of a reasonable probability that, had Messina advised him of the potential SVP consequences of his plea, he would not have pled guilty.
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.
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.)
First, in response to Appellant‘s suggestion that a “trial court abuses its discretion when it ‘fails to consider a relevant factor that deserves significant weight’ ” (quoting In re White (2020) 9 Cal.5th 455, 470), there is no indication that the trial court here failed to consider whether Messina advised Appellant regarding the potential SVP consequences of a change in his plea. Moreover, this failure was not a factor that deserved “significant weight” in the
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
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 indirectly by requesting a certificate of probable cause for appellate review of the ruling denying suppression of the evidence). Appellant‘s request for a certificate of probable cause provides in full:
“[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
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.
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.”
We disagree with the premise of Appellant‘s argument. The Waiver was an agreement Appellant made as part of his plea agreement. Appellant‘s reliance on the facts that the prosecutor here was not involved in the negotiations and neither received nor gave up anything as part of the plea agreement is irrelevant. The hope of leniency in sentencing is well-recognized consideration for a defendant to plead guilty, as evidenced by almost a century of cases in which defendants have attempted (albeit
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.
1. Background
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.
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 them. (See
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.
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 on a prison prior for purposes of count 3. Appellant relies on People v. Langston (2004) 33 Cal.4th 1237 (Langston), where our Supreme Court held: “Once the prior prison term is found true within the meaning of
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
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. (
IV. DISPOSITION
The trial court‘s March 13, 2020 oral pronouncement staying the
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O‘ROURKE, J.
Notes
In the respondent‘s brief, the Attorney General argues that only “after a confluence of all the[ following] factors and findings would [A]ppellant be committed as an SVP“: “If the Department of Corrections refers [A]ppellant to the Board of Parole Hearings for an initial screening and [A]ppellant is found to likely be an SVP, the Board of Parole Hearings will refer him to the Department of State Hospitals for a full evaluation by two psychologists. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646-647.) If the psychologists agree that [A]ppellant meets the criteria for SVP commitment, a petition for commitment is filed in the superior court, and a probable cause hearing is scheduled. (Id. at p. 647.) If a court determines probable cause exists, it sets the matter for trial. ‘This trial contains a number of procedural safeguards commonly associated with criminal trials, including the alleged SVP‘s right to a jury trial [citation], to assistance of counsel [citation], and to a unanimous jury finding that he or she is an SVP beyond a reasonable doubt before he or she may be committed. [Citation.])’ (Reilly v. Superior Court, supra, 57 Cal.4th at p. 648.)”
In a concurring opinion, Justice Baxter (who authored Buttram) noted that, by contrast, if the plea bargain had included an express waiver of the right to appeal, the defendant would have been required to obtain a certificate of probable cause as to the validity of the waiver. (Buttram, supra, 30 Cal.4th at p. 793 [conc. opn. of Baxter, J.].) That is because “an attempt to appeal the sentence notwithstanding the waiver would necessarily be an attack on an express term, and thus on the validity, of the plea.” (Ibid.)
We decline Appellant‘s counsel‘s suggestion that we remand this case to the trial court with directions to conduct a new in camera review of all San Diego Police Department files that are responsive to Appellant‘s discovery request under the new legislation. Notably, at the time of the production of the police officer‘s records in this case, he had been with the San Diego Police Department less than five years. In any event, Appellant does not contend that this new legislation is to be applied retroactively, the legislation does not indicate it is to be applied retroactively, and we do not issue rulings based on legislation that will be effective after the date on which our opinion will become final in this court.