People v. Fergerson

          OPINION

          ARONSON, J.

         Defendant Joshua Fergerson pleaded guilty to two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); all further statutory citations are to the Penal Code unless indicated) and two counts of false imprisonment by violence (§§ 236, 237, subd. (a)), and he admitted the robberies were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)

         Counsel filed a brief setting forth a statement of the case. Counsel does not argue against his client, but advises this court he has found no issues to support an appeal. We provided defendant 30 days to file his own written argument. That period has passed, and we have received no communication from him. Consequently, we now review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

         The evidence produced at defendant’s preliminary hearing reflected that on the afternoon of May 13, 2008, two men entered a credit union in Buena Park. One of the two employees, Jane Doe 2, directed the other, Jane Doe 1, to assist the men. One of the men, later identified as Shawn Owens, grabbed Jane Doe 1 by the neck and moved her 30 to 40 feet into the teller area. He demanded, “Give me your money” and ordered her to get on the ground. He opened the cash drawers and began removing money. The second man, later identified as defendant, grabbed the sole customer, Jane Doe 3, by the neck and began to push her, but Owens said to leave her alone. She hid under a desk. Video cameras captured the incident.

         Shortly after the robbery, officers set up a checkpoint near the credit union and stopped a black Monte Carlo without a front license plate. The driver and registered owner was co defendant Reginald Tinsley, a resident of Los Angeles County.

         While they were with Tinsley, the officers spotted defendant walking quickly away from the direction of the credit union. Blood dripped from his right forearm, and he had scuffed the knee area of his pants. Officers detained him, and he misidentified himself as Joshua Michael Brooks. He had two $50 bills and one $100 bill in his front right pocket. Meanwhile, Tinsley drove off.

         A robbery detective driving in a residential neighborhood near the credit union spotted Owens, who matched the description of the robbery suspect at the credit union. The officer apprehended Owens, who was sweating profusely and had scratches on his arms and knees.

         The customer defendant had accosted during the robbery identified defendant and co defendant Owens at the scenes of their respective detentions about 20 minutes after the robbery. Interviewed later at the police station after receiving a Miranda advisement, defendant admitted his involvement and stated he committed the robbery with Owens. Defendant’s role was to act as lookout and to order the customers to the ground. He had received a ride to Orange County by two “Rollin’ 60s” gang members for the ostensible purpose of meeting girls. On the ride down, Owens disclosed he wanted to “make some money, ” i.e., commit a robbery. Defendant said he “wasn’t feeling it” but went along because he was scared. Owens took “all of the money.” As they ran out, Owens dropped $300 and defendant picked it up. Owens told defendant he was now on his “own mission” and they fled separately. Defendant felt betrayed because he was in an unfamiliar area.

         Arrested in Los Angeles and transported to Orange County the following day, Tinsley said he had given his cousin’s friend, Owens, a ride to Buena Park to visit someone. Tinsley admitted he once belonged to the Rollin’ 60s crip gang and his moniker was “Concrete, ” but he was no longer a member. Tinsely could not identify defendant.

         A Los Angeles police officer assigned to the gang enforcement detail identified the Rollin’ 60s as a large criminal street gang in South Central Los Angeles. According to the officer, robbery was a primary activity of the gang and Owens and Tinsley were both members of Rollin’ 60s. The gang officer opined the charged robberies and associated crimes were for the benefit of, at the direction of, or in association with a criminal street gang.

         Following the preliminary hearing, the court found insufficient evidence of aggravated kidnapping, but found sufficient evidence to support the robbery and false imprisonment charges, and to sustain the gang enhancement.

         On June 3, 2009, defendant pleaded guilty as indicated above on the understanding he would receive a three-year prison term. On September 25, 2009, the trial court imposed a three-year term as follows: the three-year midterm for the robbery against Jane Doe 1, a concurrent three-year term for the robbery of Jane Doe 2, a concurrent two-year term for the false imprisonment of Jane Doe 3. The court stayed (§ 654) execution of sentence for the false imprisonment of Jane Doe 1, and struck the section 186.22, subdivision (b)(1), enhancements for sentencing purposes. Defendant received credit for 502 days of actual custody and 75 days of conduct credit. The court also imposed statutorily required fines and fees, and the court retained jurisdiction to determine victim restitution.

         Defendant filed a notice of appeal in propria persona, checking boxes indicating the appeal was based on the sentence or matters occurring after the plea, but he also indicated the appeal challenged the validity of the plea or admission. He claimed he was entitled to a certificate of probable cause to pursue his appeal “[d]ue to being forced by court appointed counsel to take a plea after informing the attorney that I wanted to retrack [sic] the guilty plea to not guilty; [and] Do [sic] to ineffective assistance of court appointed counsel forcing me to take a plea agrement [sic] under durress [sic], and failing to conduct an investagation [sic], quesion [sic] witness [sic] or properle [sic] act as an attorney defending a client to which prejudiced me to having a fair hearing.” The trial court denied defendant’s request for a certificate of probable cause.

         Discussion

         Counsel raises the following possible issues: Whether the case should be remanded to allow defendant the opportunity to withdraw his guilty plea based on his belief the trial court did not properly advise defendant of his rights or was under duress by trial counsel to accept the plea deal offered by the prosecution; and whether the factual basis of the plea was inadequate because it failed to mention one count of false imprisonment.

         As counsel notes, a defendant who has pleaded guilty and who appeals from the judgment of conviction must comply with section 1237.5 and California Rules of Court, rule 8.304(b), which require a defendant to obtain a certificate of probable cause where the validity of the plea is challenged. (People v. Mendez (1999) 19 Cal.4th 1084, 1088 (Mendez).) Section 1237.5 is designed to promote judicial economy by screening out wholly frivolous guilty plea appeals before time and money are spent on such matters as the preparation of the record on appeal, the appointment of appellate counsel, and consideration and decision of the appeal itself. (Id. at p. 1095.) In determining the applicability of section 1237.5, the issue is what the defendant is challenging, not the time or manner in which the challenge is made. (People v. Ribero (1971) 4 Cal.3d 55, 63 (Ribero); accord People v. Panizzon (1996) 13 Cal.4th 68, 76.)

         All of the issues mentioned by defendant in his request for a certificate of probable cause, and by appointed appellate counsel in his Wende brief, relate to the validity of the plea and do not fall within the exceptions to rule 8.304(b)(4)’s requirement the appellant must succeed in obtaining a certificate of probable cause before continuing his or her appeal. (Ribero, supra, 4 Cal.3d at pp. 63-64 [motion to withdraw a plea based on the ineffective assistance of counsel is a challenge to the validity of the plea]; People v. Thurman (2007) 157 Cal.App.4th 36, 44, fn. 6 [contention court failed to make sufficient inquiry into basis for guilty plea challenges legality of plea]; People v. Castelan (1995) 32 Cal.App.4th 1185, 1187 [certificate of probable cause required based on claim trial court should have allowed defendant to withdraw guilty plea involuntarily entered].) Accordingly, defendant’s failure to obtain a certificate of probable cause precludes consideration of the plea issues that appear to have prompted his appeal.

         Moreover, nothing in the record supports defendant’s assertion he applied or desired to withdraw his guilty plea (§ 1018 [“On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted”]), or that he had good cause to withdraw the plea. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 [defendant seeking to withdraw a guilty plea must establish he was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment].) The record contains no evidence to support defendant’s conclusory statements he was “forced” by counsel to take a plea “under duress.” Nor does the record reflect counsel was ineffective. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claim of ineffective assistance is not properly considered on appeal where the record does not show why counsel failed to act in the manner challenged unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation].)

         The record also reflects the trial court adequately advised defendant of his rights before he pleaded guilty. He acknowledged in open court he desired to plead guilty to four felonies and receive a sentence of three years. He stated he had read the four-page “Advisement and Waiver of Rights for a Felony Guilty Plea” form, he had discussed the form with his attorney, and he initialed the boxes and signed the form. He said he understood that by pleading guilty he was giving up the rights listed on the form, which included a right to a jury trial, to confront and cross-examine witnesses and present evidence, and to testify or remain silent. He indicated on the form that he offered his guilty plea “freely and voluntarily, and with full understanding of all matters set forth in the accusatory pleading and this advisement and waiver of rights form.” He attested on the form: “No one has made any threats or used force against me, my family, or anyone else I know, in order to convince me to plead guilty in this case. Further, all promises that have been made to me to convince me to plead guilty are on this advisement and waiver of rights form.” He then pleaded guilty to “two felony counts second degree robbery and two felony counts of false imprisonment, ” and admitted the gang enhancements. The court found the plea was “free, voluntary, knowing and intelligent.” Based on the record, defendant’s plea was voluntary and intelligent.

         Finally, section 1192.5 provides that for pleas conditioned on a particular sentence, the trial court “shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.” Defendant stated he had read the factual basis statement, and the statement was true. The statement did not mention the false imprisonment against Jane Doe 1. Nevertheless, the preliminary hearing transcript provided a factual basis for that charge. Any failure to inquire by the court was harmless. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1562 [court’s failure to inquire into factual basis harmless because probation report established factual basis].)

         We discern no other arguable issues defendant could present on appeal. The Supreme Court has directed appellate courts to apply section 1237.5 strictly; if an appeal is based on grounds requiring a certificate of probable cause, but the defendant has not sought and obtained the certificate, the appeal must be dismissed. (Mendez, supra, 19 Cal.4th at pp. 1096-1099.)

         Disposition

         The appeal is dismissed.

          WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.