People v. Toucher CA3 ( 2013 )

Filed 12/3/13 P. v. Toucher CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent, C073984
v. (Super. Ct. No. 62115015)
KENNETH DUANE TOCHER,
Defendant and Appellant.
Appointed counsel for defendant Kenneth Duane Tocher asked this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal. 3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the judgment.
1
I
Because the matter was resolved by plea and defendant waived referral to the
probation department, the facts are taken from the prosecutor’s statement of factual basis
for the plea. In July 2012, defendant knowingly and intentionally possessed property that
had been stolen from a Placer County retailer, and knowingly possessed a usable amount
of methamphetamine, knowing the substance to be methamphetamine.
After his Marsden1 motion was denied, defendant pleaded no contest to receiving
stolen property (Pen. Code, § 496, subd. (a))2 and possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)) in exchange for dismissal of three other counts
and an unrelated case.
The trial court sentenced defendant to the stipulated term of two years in jail,
awarded 11 days of custody credit and 10 days of conduct credit, and ordered defendant
to pay a $240 restitution fine (§ 1202.4), a $240 parole revocation fine (§ 1202.45), an
$80 court operations fee (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment
(Gov. Code, § 70373).
Defendant’s motion to withdraw his plea was dropped. Defendant obtained a
certificate of probable cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal. 3d 436.) Counsel advised defendant of the right
to file a supplemental brief within 30 days of the date of filing the opening brief, and
defendant filed a supplemental brief raising various issues, which we address in turn.
1 People v. Marsden (1970) 2 Cal. 3d 118 (Marsden).
2 Undesignated statutory references are to the Penal Code.
2
A
Defendant contends his trial counsel rendered ineffective assistance. In this Placer
County case, he pleaded no contest to receiving stolen property. But he claims his
defense counsel should have informed the trial court that “if [he] would plea to
misdemeanor embezzlement” in another Sacramento County case involving the same
property as in this case, Placer County could not charge him with felony receiving stolen
property, thus preserving his eligibility for treatment under Proposition 36. (§ 1210.1.)
In another paragraph he adds that he was deprived of his right to plead in Sacramento
County to misdemeanor embezzlement as a lesser offense so that Placer County would
lose jurisdiction, enabling him to be eligible for treatment under Proposition 36.
The record on appeal does not explain the reasons for the forum choices made by
the parties, but it does confirm that such choices were made. The prosecutor said that as
part of the plea agreement, the People would notify Sacramento County of defendant’s
plea to receiving stolen property in this case and recommend dismissal of the pending
misdemeanor embezzlement charge in Sacramento County.
Defendant’s trial counsel was never asked to explain the reasoning for the
agreement, and the record does not demonstrate that there could be no satisfactory
explanation. Our review of the record does not disclose that trial counsel was ineffective.
B
Defendant next claims the trial court erred in denying his Marsden motion. At the
Marsden hearing, defendant said his trial counsel whispered in his ear during a court
proceeding that it “ ‘wasn’t wise to complain against your lawyer.’ ” Defendant took the
remark to mean that counsel was not acting in defendant’s best interest. But the trial
court found that defense counsel had worked very hard for defendant and obtained an
offer that defendant was willing to accept. The trial court said there was no basis to
replace counsel.
3
Defendant further complains that his trial counsel said “I’m done with you.”
However, defendant did not mention the remark during the Marsden hearing, when he
had the opportunity to reveal what his attorney may have said to him.
We have reviewed the record and we have not identified any error by the trial
court in connection with the Marsden motion.
C
Defendant claims that every time he tried to assert the alleged facts referenced in
parts A and B, ante, he was told to shut up. But he does not say who told him to shut up.
The record does not disclose any such statement. However, if defendant is alleging that
his trial attorney made such a statement, counsel was not asked to explain the remarks,
and there could be a satisfactory explanation. Again, our review of the record does not
disclose ineffective assistance.
D
Defendant contends he made a plea to go to “behavioral court” and he was
evaluated. According to defendant, the court said it was apparent defendant had mental
health issues. Defendant says that is where “it stopped.” He adds that “for some reason
Placer County Superior Court never entertained this request.”
The record does not mention behavioral court or shed any light on defendant’s
contention. No error appears in the record.
E
Defendant asks this court to relieve his appointed appellate counsel and to
substitute defendant in propria persona. However, defendant offers no reason for the
request and none appears in the record. Accordingly, defendant’s request to relieve
appellate counsel is denied.
4
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
RAYE , P. J.
DUARTE , J.
5