P. v. Paul CA1/1 ( 2013 )

Filed 3/15/13 P. v. Paul CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
A136635
ROBERT PAUL,
(County of Mendocino
Defendant and Appellant. Super. Ct. No. SCUK-CRCR 12-21083-02)
Defendant appeals from pleas of no contest pursuant to California Rules of Court,
rule 8.304(b). His request for a certificate of probable cause was denied by the trial court
on September 18, 2012.
Appellant was charged in an information with battery on a peace officer (Pen.
Code, § 243, subd. (c)(2)), resisting an officer (Pen. Code, § 69), possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor crime of
giving a false name to a policeman (Pen. Code, § 148.9, subd. (a)). The information
alleged a great bodily injury enhancement pursuant to Penal Code section 12022.7,
subdivision (a) regarding the battery and resisting counts. On June 14, 2012, the
possession of methamphetamine charge in count III was reduced to a misdemeanor, and
appellant entered no contest pleas to all counts, and admitted the enhancements under
Penal Code section 12022.7.
On July 27, 2012, appellant was sentenced to five years in state prison, consisting
of a two-year midterm sentence on the battery charge in count I, with a consecutive three-
year term for the 12022.7 enhancement. The terms for the resisting offense in count II
and its enhancement were stayed pursuant to Penal Code section 654. A six-month
concurrent term was imposed on the misdemeanor possession offense as well as the false
identification charge.
Appellant filed his notice of appeal on September 14, 2012. His request for a
certificate of probable cause was denied.
Appellate counsel has reviewed the file in this case and has determined there are
no meritorious issues to raise on appeal. She has complied with the relevant case
authorities. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d
436.) Defendant was notified of his right to file a supplemental brief, but has not done
so. Upon independent review of the record, we conclude that no arguable issues are
presented for review, and affirm the judgment.
We have reviewed the record in this case. A hearing based on People v. Marsden
(1970) 2 Cal.3d 118 was conducted a week before the plea. A review of the proceedings
indicates appellant was concerned about a lack of communication between himself and
trial counsel. At the time, the trial counsel had been engaged in a homicide trial. He
indicated he was now focusing on appellant’s matter. At the end of the hearing, appellant
advised the court he was satisfied with the hearing. No further challenge based on
Marsden was presented during the history of the case.
The trial court properly questioned the appellant before accepting his pleas of no
contest and admission of the enhancement. The court specifically asked appellant if he
had had sufficient time to discuss the pleas with his trial counsel, the same attorney he
had during the Marsden hearing. Appellant indicated he had. Also, the court directly
asked appellant if he had any questions with the court before entering his pleas, and
appellant indicated he did not nor did he need to discuss the entry of pleas with counsel
before he in fact pleaded no contest to the charges.
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In this instance the trial court did not make a finding of probable cause. Appellant
made a request based on the issues presented in his Marsden hearing and the sufficiency
of evidence of great bodily injury. We have already addressed the first contention.
Regarding the issue of the enhancement, the injured officer suffered a separated shoulder
as a result of the struggle with appellant. He was unable to return to full duty for a
minimum of six months. Additionally, appellant admitted the enhancement was true
when he entered his no contest plea.
Under People v. Mendez (1999) 19 Cal.4th 1084, 1095, a review of a plea is
permitted if a court has issued a certificate of probable cause. Otherwise, an appellant
cannot appeal a nolo plea challenging the legality of the plea process. This rule seeks to
ensure judicial economy. Under the facts of this case, we adopt this rationale without
hesitation.
We affirm the judgment.
__________________________________
Dondero, J.
We concur:
__________________________________
Margulies, Acting P. J.
__________________________________
Banke, J.
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