Opinion
E067987
11-16-2017
THE PEOPLE, Plaintiff and Respondent, v. GERALD GUTIERREZ, Defendant and Appellant.
Gerald Gutierrez, in pro. per.; and Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB 1502210) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed. Gerald Gutierrez, in pro. per.; and Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Gerald Gutierrez, pled guilty to receiving stolen property, a motor vehicle. (Pen. Code, § 496d, subd. (a); count 2.) Pursuant to the plea agreement, the court granted defendant probation on various terms and conditions. After defendant admitted violating a term of his probation for a fourth time, the court sentenced defendant to the upper term of three years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
After defendant's counsel filed a notice of appeal, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying three potentially arguable issues: (1) whether the trial court erred in determining defendant was ineligible for reduction of his offense to a misdemeanor pursuant to section 1170.18; (2) whether the court erred in determining defendant was ineligible for realignment sentencing in county jail pursuant to section 1170, subdivision (h)(3); and (3) whether the trial court abused its discretion in sentencing defendant to the upper term.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. We discern the following eight issues raised by defendant: (1) defendant's original plea was invalid because he suffered from a mental disability; (2) he never suffered any conviction for armed robbery in Oklahoma, which the court found rendered him ineligible to be sentenced to county jail; (3) defendant's plea was coerced because it was a package deal allowing his son, Samuel Rowe, a deal only if defendant pled as he did; (4) his plea was coerced due to the short time he had to consider it; (5) the terms of defendant's plea specifically allowed him to appeal; (6) the terms of the plea specifically allowed defendant to withdraw his plea at any time; (7) insufficient evidence supported the fourth violation of defendant's probation; and (8) a term of defendant's plea specifically provided that defendant could have his offense reduced to a misdemeanor.
On October 27, 2017, we received a second supplemental brief from defendant. On November 14, 2017, on our own motion, we vacated submission of the case and filed the second supplemental brief. In the second supplemental brief, defendant retreads the issues raised in his initial supplemental brief. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On May 19, 2015, San Manuel Casino security notified police they observed Rowe drive and park a green 1993 Saturn SL2 sedan which had previously been reported stolen; defendant had exited the vehicle along with Rowe. The responding officer conducted a search of defendant and located the ignition key for the vehicle in his sweatshirt pocket. Rowe admitted to driving the vehicle, but only after defendant became too intoxicated to drive.
The parties stipulated that the police report and complaint would provide the factual basis for the plea.
On June 29, 2015, the People charged defendant by felony complaint with driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 1) and receiving stolen property, a motor vehicle (Pen. Code, § 496d, subd. (a); count 2). On July 27, 2015, pursuant to a plea agreement, defendant pled guilty to the count 2 felony offense.
The court simultaneously conducted plea hearings with respect to three different defendants, one of whom was Rowe.
Defendant initialed a provision of the plea agreement indicating: "I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain." Defendant initialed a provision providing: "I have had sufficient time to consult with my attorney concerning my intent to plead guilty/no contest to the above charge(s) . . . . My lawyer has explained everything on this Declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials in certain boxes on this Declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes."
"Counsel does not join" was inserted into the provision. --------
Defendant initialed a provision providing: "I am not now under the influence of alcohol, or of any drugs, narcotics, medicine, or any substance which could interfere with my ability to understand what I am doing; nor am I suffering from any condition which could have that effect. Defendant initialed a provision providing: "No one has used any force or violence or threats or menace or duress or undue influence of any kind on me or anyone dear to me to get me to plead guilty/no contest as indicated." Defendant signed the agreement reflecting under penalty of perjury "that the forgoing [provisions were] true and correct." Defense counsel signed the agreement reflecting counsel had "personally read and explained the contents of the . . . Declaration to the Defendant; that [he] personally observed the Defendant sign said Declaration . . . ."
In court, in response to the court's inquiries, defendant stated he personally initialed the provisions of the plea agreement, he carefully went over the document, and understood everything on the form. Defendant responded affirmatively to the court's query as to whether defendant "had enough time to discuss [his] case with [his] attorney . . . ." The court asked defense counsel if counsel had adequate time to discuss the ramifications of the plea to defendant; counsel responded: "Yes, sir." Defendant asked of the court if, "upon successful completion of the probationary period, I have an opportunity to ask for that to be expunged; is that correct?" The court responded: "You have a right to bring the appropriate motion to reduce it to a misdemeanor." The court found defendant understood the consequences and punishments for the offense to which he was pleading.
In return for defendant's plea, the People agreed to three years of probation, 90 days of jail time with credit for 28 days, and dismissal of the other count and another case. Pursuant to the plea agreement, the court placed defendant on probation for three years with various terms and conditions, including that he spend 90 days in jail on weekends; defendant was released from custody that day. Defendant had signed a document enumerating the terms and conditions of his probation. The document additionally reflected that defendant had read, understood, and agreed to all the terms and conditions of his probation. Defendant responded affirmatively when asked by the court if he had read, understood, and agreed to the terms and conditions.
On September 2, 2015, a probation officer submitted a petition for revocation of defendant's probation and request for issuance of a bench warrant alleging defendant violated the term of his probation requiring that he report to probation immediately upon release from custody and once every 14 days as directed. According to the petition, defendant was released from custody on July 27, 2015. On August 10, 2015, a letter was sent to defendant directing him to report to the probation office on August 13, 2015. As of the date of the petition, defendant had still not reported to probation. On September 16, 2015, the court revoked defendant's probation and issued a bench warrant. On October 15, 2015, defendant admitted he violated a term of his probation; in return, the court reinstated probation, increasing the jail term to 105 days.
On March 3, 2016, a probation officer filed a second petition for revocation of probation alleging defendant had violated the terms of his probation that he report every 14 days and that he violate no law. The probation officer alleged defendant last reported to probation on January 22, 2016, and had been arrested on February 29, 2016, for false impersonation. On April 1, 2016, defendant admitted violating his probation by failing to report; in return, the court revoked and reinstated defendant's probation with an increased jail term of 180 days.
On July 5, 2016, a probation officer filed a third petition for revocation of probation alleging defendant had violated the terms of his probation that he report as directed, cooperate with probation in a plan of rehabilitation, seek and maintain gainful employment or attend school, not possess any dangerous or deadly weapons, and carry a copy of the terms and conditions of his probation on his person at all times. As alleged in the petition, defendant was released from custody on April 1, 2016, but failed to report to probation until April 13, 2016. On May 13, 2016, defendant reported to probation and was found to be in possession of a knife. On May 27, 2016, defendant reported to probation and was arrested on an active bench warrant; a search of his person revealed multiple credit cards, benefits cards, and a driver's license that did not belong to him; defendant was also found to be in possession of a knife. Defendant failed to report when released from custody and failed to report as ordered thereafter. On June 27, 2016, defendant reported late to probation and refused to enter a treatment facility as part of his rehabilitation; defendant admitted using methamphetamine, marijuana, and alcohol on a consistent basis.
On September 23, 2016, defendant admitted violating the term of his probation by failing to report as directed. In return, the court revoked and reinstated defendant's probation. Defendant was ordered to serve 316 days in jail, but was released with credit for time served. The court informed defendant: "This is a warning now. Okay. You had a violation October 15th of 2015. I believe you had another petition filed June 29, 2016 [sic], which I think is probably this one [sic]. This will be your second [sic] violation. If you are back again on a violation of probation, there is a very strong likelihood that you are not going back on probation, that you will be going to county jail. Depending on your record it is county jail [or] State prison, just so you know. So you should take this very seriously."
On February 9, 2017, a probation officer filed a fourth petition for revocation of defendant's probation for violating the terms of his probation that he cooperate with the reasonable directions of his probation officer, neither use nor possess any controlled substance, and participate in a rehabilitative program as directed. As alleged, on October 5, 2016, defendant admitted using marijuana, methamphetamine, and alcohol. On December 8, 2016, defendant tested positive for methamphetamine, amphetamines, and marijuana. On December 28, 2016, defendant again tested positive for methamphetamine and marijuana. On January 12, 2017, defendant was removed from a treatment facility for jumping the fence and entering a neighbor's house to obtain narcotics. On January 24, 2017, he was removed from another program after using narcotics in his room.
In a supplemental probation officer's report dated March 13, 2017, the probation officer noted that defendant had prior robbery convictions in the State of Oklahoma which, if determined to be serious or violent felonies in California, would prohibit his commitment to county jail to serve any prison term. The probation officer recommended defendant's probation be revoked and that he be sentenced to the upper term in prison.
On March 14, 2017, defendant admitted violating the term of his probation by failing to participate in a rehabilitation program as directed. Defense counsel then moved to reduce defendant's conviction for felony receiving stolen property to a misdemeanor pursuant to section 1170.18. Defense counsel noted that the Kelly Blue Book value of the vehicle defendant pled guilty to receiving, in "very good condition, is trading at a rate of $308 to $679 today. [¶] This car is pretty old. I don't think it's going to be found to be worth $950. I think the value is less. And I think that [defendant] should have the benefit of the fact that the property involved in this case was less than $950."
The People noted that a conviction for receiving stolen property was not one of the enumerated offenses eligible for relief pursuant to section 1170.18. The People observed that even if eligible, "the value of the car today is not the relevant inquiry as to the value of the car . . . when it was taken." The People argued that the upper term was appropriate considering defendant's criminal history and his poor performance on probation. The People noted the court was required to sentence defendant to prison because defendant's previous convictions for armed robbery and robbery by force or fear in Oklahoma were statutorily, nearly identical to the definition of robbery in California.
The court observed that section 1170.18 did not list the offense of receiving a stolen vehicle as one that was eligible for resentencing or reduction to a misdemeanor. The court additionally noted that even if eligible, the Kelly Blue Book value of the car was based upon then current values, not the value of the vehicle at the time that it was stolen. Thus, the court found: "There's just not enough evidence in front of me to make a determination what the value of the car [was], and the defense has the burden." The court cited defendant's poor performance on probation, his prior criminal history, and defendant's convictions for serious or violent felonies as reasons to impose the upper term of three years of imprisonment: "It appears to the Court that his prior from Tulsa, Oklahoma meets the same definition of robbery under California law."
II. DISCUSSION
A. Plea Issues
Defendant's contentions that his plea was invalid because he suffered from a mental disability, was coerced as a package deal, and was coerced due to the short time he had to consider the offer were forfeited, are untimely raised in this appeal, and would require issuance of a certificate of probable cause. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413 [a defendant forfeits a claim that his plea was involuntary by failing to file a motion to withdraw the plea in the court below]; People v. DeLouize (2004) 32 Cal.4th 1223, 1232-1233 [the defendant has 60 days from the date of the judgment to file an appeal; failure to file a timely appeal shows acquiescence in the judgment]; People v. Johnson (2009) 47 Cal.4th 668, 678 [a certificate of probable cause is required when a defendant attempts to challenge any aspect of a plea agreement on appeal].)
Here, defendant pled guilty to receiving stolen property, a motor vehicle, on July 27, 2015. The court entered judgment the same day. Defendant filed the instant appeal on March 21, 2017. Thus, the appeal is untimely. Moreover, defendant never filed a motion to withdraw the plea in the court below. Furthermore, defendant never requested issuance of and the court never granted, a certificate of probable cause. Thus, defendant's complaints on appeal regarding the validity of his plea have been forfeited, are untimely, and are procedurally barred.
Even if defendant could validly raise these issues in this appeal, we note no evidence supports them. Defendant asserts that he suffered from a mental disability which rendered his plea invalid; however, nothing in the record supports this assertion. Defendant was never the subject of a section 1368 determination in this case. Defendant initialed a provision of his plea agreement providing that he was not suffering from any condition which would interfere with his ability to understand the plea agreement.
Defendant attaches to his brief one document which indicates that on August 15, 2017, defendant had a "qualifying disability requiring effective communication[.]" However, the document does not indicate from what type of disability defendant suffered; does not show defendant suffered from the disability on June 29, 2015, more than two years earlier, when defendant entered his plea; and does not negate the indications in his plea agreement and during entry of his plea that defendant understood the terms of his plea agreement. Defendant also attaches a request dated September 10, 2017, for a copy of his "mental health interview." Again, however, this document is more than two years after defendant entered his plea and is simply a request for documents; it does not actually provide any evidence that defendant ever suffered from a mental disability.
Furthermore, nothing in the record indicates that Rowe was defendant's son or that their contemporaneous pleas were a package deal. Contrary to defendant's assertion, nothing in his plea agreement reflects Rowe was his son or that the plea was part of a package deal. Defendant initialed a provision of the plea agreement reflecting that he was not under "duress or undue influence of any kind on me or anyone dear to me to get me to plead guilty/no contest as indicated." Defendant, in his brief, even now, indicates only his "belief" that Rowe is his son and that he is still awaiting the result of a blood test to render a dispositive determination.
Finally, defendant's contention that his plea was coerced due to the short time he had to consider it is belied by his initialing and signing of the plea agreement indicating he "had sufficient time to consult with [his] attorney concerning [his] intent to plead guilty . . . ." Moreover, the court specifically asked defendant and defense counsel if they had had enough time to discuss the ramifications of the plea agreement; both responded that they had. Regardless, having only a short time to consider whether to enter a plea is not, in and of itself, a sufficient basis to withdraw a plea. (People v. Grey (1990) 225 Cal.App.3d 1336, 1340 [having only five to 10 minutes to consider plea offer not sufficient basis to withdraw the plea where the defendant did not request additional time to consider the plea], disapproved of on another ground in In re Jordan (1992) 4 Cal.4th 116, 119, 126, 130, fn. 8.) Here, defendant did not request additional time to consider the plea offer. B. Terms of the Plea
Defendant's contention that the term of his plea, which provided he waived and gave up his right to appeal, was obviated by defense counsel's insertion that he did not join that provision finds no support. If defendant wished to retain his right to appeal, he should not have initialed the box and signed the agreement. Moreover, as discussed ante, defendant forfeited any right to appeal issues with respect to the plea agreement, failed to file a timely appeal, and failed to obtain a certificate of probable cause. Similarly, nothing in the record indicates defendant retained, as a term of his plea, the right to withdraw it at any time.
Defendant's contention that a term of his plea specifically permitted him to reduce his offense from a felony to a misdemeanor finds no support in the record. None of the terms of the plea agreement contain anything respecting a reduction of the offense. Although the court noted that defendant retained the "right to bring the appropriate motion to reduce it to a misdemeanor," this was no guarantee of the outcome of any such motion. Indeed, defense counsel, at defendant's hearing on his fourth violation of probation, requested just such a reduction. The court properly denied the motion, finding that section 1170.18 did not enumerate defendant's offense as eligible for reduction. (People v. Varner (2016) 3 Cal.App.5th 360, 367 [conviction for felony receiving stolen motor vehicle not eligible for reduction to misdemeanor pursuant to § 1170.18].) C. Defendant's Prior Convictions and Sufficiency of the Evidence
Defendant contends he was not convicted of armed robbery in Oklahoma, the offense which rendered him ineligible for sentencing to county jail. First, defendant failed to object on this basis below; thus, the issue has been forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to court's sentencing decisions forfeits claims on appeal].) Moreover, the probation officers presented evidence in each of their reports that defendant had been convicted in Oklahoma of one count of armed robbery and two counts of robbery by force or fear. Thus, sufficient evidence supported the court's determination that defendant had suffered a prior serious or violent felony conviction which rendered him ineligible for incarceration in county jail.
Finally, defendant maintains insufficient evidence supports a determination that he violated the terms of his probation by going into a home while at Gibson House to obtain drugs and that any drugs were found in his room while in the other rehabilitative program. However, no evidence of these allegations was needed to sustain the allegations that defendant had violated his probation. Defendant admitted violating his probation by failing to participate in a rehabilitation program as directed. Defendant's admission alone is sufficient evidence he violated his probation. (See People v. Jones (1995) 37 Cal.App.4th 1312, 1316 [an on-the-record oral admission of the prior conviction allegation constitutes sufficient evidence to support the prior conviction allegation]; see also People v. McGuire (1993) 14 Cal.App.4th 687, 697, fn. 12 [guilty plea concedes all elements of offense, establishing sufficiency of the evidence of guilt]; People v. Maultsby (2012) 53 Cal.4th 296, 304, fn. 6.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.