Opinion
B230588
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW GJERSVOLD, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. NA084946)
THE COURT:
BOREN, P. J., DOI TODD, J., CHAVEZ, J.
Appellant Matthew Gjersvold appeals from the judgment entered following his plea of no contest to two counts of possessing an assault weapon (Pen. Code, § 12280, subd. (b)) (counts 1, 2) and possession of a deadly weapon (a billy) (§ 12020, subd. (a)) (count 3). The trial court sentenced appellant to the upper term of three years in count 1 and imposed concurrent sentences in counts 2 and 3. Appellant was granted 266 actual days and 266 conduct credits for a total of 532 days of pre-sentence credit.
All further references to statutes are to the Penal Code unless stated otherwise.
We hereby grant appellant's motion of July 21, 2011, to augment the record with the amended abstract of judgment showing the correct number of credit days.
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an "Opening Brief in which no issues were raised. On July 21, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On August 23, 2011, appellant filed a supplemental brief in which he raised four issues of ineffective assistance of counsel, i.e., (1) failure to fully investigate his case; (2) failure to assist him in his desire to withdraw his plea; (3) filing a deficient motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); and (4) failure to challenge evidence obtained by an illegal search warrant.
Since appellant entered a plea before trial, we obtain the facts from the transcript of his preliminary hearing on May 26, 2010. Detective John Hotchkiss of the Long Beach Police Department testified that he executed a search warrant of appellant's residence on March 1, 2010. In a safe in the garage, police found two Colt assault rifles. The rifles were both loaded and were not registered as required by law. One of them was loaded with armor-piercing ammunition. In the same safe, police found a Benelli shotgun, a Ruger mini-14 rifle, two handguns, and ammunition. Inside the residence, police found another handgun, loaded and concealed between the cushions of the living-room couch. Detective Hotchkiss testified that, prior to execution of the search warrant, appellant repeatedly asked one of the detectives if he could go inside and sit on the couch during the search. Inside the house police found more ammunition, a rifle case, a police uniform, a police polo shirt with patches, an embroidered badge, a police raid jacket, and a police identification card. Appellant had been a police officer and was expected to turn these items into the police department upon leaving his employment.
According to the probation report, appellant was fired from the Long Beach Police Department. He was subsequently arrested for vandalism. His "bizarre behavior" led to the police obtaining a warrant to search his home.
Detective Hotchkiss testified that appellant committed several acts after the search that led police to monitor his movements and conduct a second search. He made an anonymous call to a police officer that appeared menacing, he went to a gun store and inquired about a high-powered rifle with a scope, he drove around in the proximity of a detective's home and a former police chiefs home, he drove around a donut shop frequented by many different law enforcement agencies, he called in apparently false domestic disturbances and asked for police cars to be dispatched to an address near his home, and he made other calls to the police station. The second search yielded two handguns and a police baton that were not found previously.
On June 9, 2010, appellant was arraigned on the weapons charges, to which he pleaded not guilty. On June 11, 2010, appellant's Pitchess motion was denied without prejudice. Appellant filed a supplementary declaration for his Pitchess motion on June 14, 2010, which was denied on the ground that appellant had failed to show good cause. On July 26, 2010, appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. On the same date, after a Marsden hearing, appellant's first attorney was removed and another attorney was appointed.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On August 23, 2010, the People told the court that they were extending appellant an offer. If he pleaded guilty to all three counts and submitted to a section 1203.03 diagnostic evaluation, and, if as a result of the diagnostic evaluation the Department of Corrections recommended a prison term, there would be a three-year lid on appellant's sentence. If the Department of Corrections recommended county jail and probation and persuaded the trial court of that as well, appellant would receive probation with suspended execution of his maximum sentence of four years, four months. Appellant's counsel stated for the record that the trial court had refused to grant probation outright. Appellant pleaded "no contest" to all three counts.
The diagnostic report was filed on December 2, 2010. The report stated that appellant appeared to be a suitable candidate for a grant of felony probation and that he posed a minimal threat to the community. The report said that appellant was "very open and honest regarding the circumstances of his arrest and conviction. He accepted responsibility for his behavior and expressed remorse." The examining doctor stated that appellant was clearly being targeted for some reason.
The trial court stated that it considered the report one of the worst it had ever read. The report contained internal inconsistencies and reflected statements by appellant that, in the court's opinion, indicated he was lying. The historians appeared to have adopted his statements as true despite their internal inconsistencies. The trial court disputed the diagnostic report's findings that appellant was very open and honest and had expressed remorse. The trial court stated that "instead the adjectives I would use to describe the behavior that [appellant] engages in is threatening . . . dangerous, scary, not just childish and bizarre." The trial court recited all the instances of appellant's conduct that had been revealed at the preliminary hearing. The trial court found that the conclusion that appellant had been targeted for some reason was "absolutely ludicrous." The court stated that the report reflected that "without any doubt" appellant had lied during the interviews.
The trial court stated it would not give appellant probation because he lied throughout the psychological report, and by lying he revealed that he was not remorseful. The court's reasons for imposing the high term of three years were that appellant's behavior was exceedingly dangerous and serious and appellant had lied during the diagnostic interview.
Appellant's notice of appeal indicated the appeal was based "on the sentence or other matters occurring after the plea that do not affect the validity of the plea." It is well settled that an appeal following a plea of guilty or no contest that challenges the validity of the plea is not operative unless appellant obtains a certificate of probable cause pursuant to section 1237.5. (People v. Shelton (2006) 37 Cal.4th 759, 766, People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez), People v. McEwan (2007) 147 Cal.App.4th 173, 177.) California Rules of Court, rule 8.304 provides that, along with the notice of appeal, a defendant appealing from a judgment after a plea of guilty or nolo contendere must file the statement required by section 1237.5 for issuance of a certificate of probable cause. (Rule 8.304(b)(1).) The rules further provide that if a defendant does not file the statement required by section 1237.5, or if the superior court denies a certificate of probable cause, the appeal is "'Inoperative.'" (Rule 8.304(b)(3).) The only exceptions to the certificate requirement occur when appeals are based on the denial of a motion to suppress evidence under section 1538.5, or they are based on grounds that arose after the defendant entered the plea and that do not affect the plea's validity. (Rule 8.304(b)(4).)
Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
All further references to rules are to the California Rules of Court unless stated otherwise.
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The record contains no evidence that appellant filed a certificate of probable cause. Therefore, we do not reach his claims that, in effect, challenge the validity of his plea. Appellant was required to obtain a certificate of probable cause from the trial court in order to raise his issues on appeal, and any appeal based on these grounds is inoperative. (§ 1237.5; Mendez, supra, 19 Cal.4th at pp. 1095-1096 [interpreting former rule 31(d), which corresponds to current rule 8.304(b)(1)-(5)].) Mendez held that section 1237.5 and its implementing rules of court "should be applied in a strict manner." (Id. at p. 1098.) Even appellant's second issue, in which he argues that his counsel provided ineffective assistance by failing to advise the trial court that appellant wished to withdraw his plea, goes to the validity of his plea. (See People v. Johnson (2009) 47 Cal.4th 668, 681-685 [appellant's claim of ineffective assistance of counsel when counsel did not assist him in presenting a motion to withdraw his plea requires a certificate of probable cause].) "Whether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest." (Id. at p. 682.)
Lastly, we have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.