People v. Jones CA2/8 ( 2022 )

Filed 7/7/22 P. v. Jones CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314612
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA101891)
v.
JOSEPH WAYNE JONES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William L. Sadler, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
We review this appeal pursuant to People v. Wende (1979)
25 Cal.3d 436.
On December 17, 2019, appellant was charged with one
count of second degree burglary in violation of Penal Code
section 459. The complaint alleged nine prior serious or violent
felony convictions pursuant to Penal Code sections 667,
subdivisions (b)–(j), 1170, subdivision (h)(3) and 1170.12. It also
alleged appellant did not remain free of prison custody for a
period of five years and therefore qualified for sentencing as
described in Penal Code section 667.5.
On December 26, 2019, appellant pleaded no contest to
burglary in the second degree. The court recited the terms of the
plea agreement: a plea of no contest to second degree burglary
with a sentence in state prison of the upper term of three years.
Prior strike and violent felony allegations would be dismissed.
Both counsel agreed to the terms as set forth by the trial court.
The court denied probation and sentenced appellant to state
prison to be served “in local prison” for the upper term of three
years. The court selected the upper term of three years pursuant
to the plea agreement.
On January 17, 2020, appellant was present in court and
stated he wished to withdraw his plea because he was told he
would serve his term in county jail, rather than in state prison,
which is what he had bargained for because he would get more
custody credits. Appellant also asked for a Marsden1 hearing.
The matter was re-set for January 23, 2020.
On January 23, 2020, the court vacated the sentence
without objection and set a new sentencing date of February 11,
1 People v. Marsden (1970) 2 Cal.3d 118.
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2020. The court also conducted a Marsden hearing at which
appellant advised the court the public defender’s office had a
conflict representing him and he was recovering from a head
injury at the time of the plea. The public defender explained
there was no conflict. The court found no grounds to relieve
counsel based on the colloquy it had with appellant at the time of
the plea. It continued the Marsden hearing, asking the public
defender’s office to look into the conflict issue again. The court
continued the hearing to February 25, 2020.
On February 25, 2020, appellant again told the court that
his attorney had a conflict representing him. The hearing was
adjourned for a few hours so both counsel could speak to their
respective agent and client. When the hearing resumed
appellant agreed to be resentenced and did not raise the conflict
issue again. The matter was then continued again to March 19,
2020, and again to January 26, 2021 for resentencing.
By January 26, 2021, appellant had been released from
custody on bail, but he was in quarantine due to Covid.
Resentencing was continued to March 10, 2021. On March 10,
2021, appellant failed to appear. The court issued a no bail bench
warrant.
By July 8, 2021, appellant was back in custody. On July
28, 2021, the court sentenced appellant to three years in state
prison pursuant to the plea agreement. The court denied
appellant’s request for mental health diversion as it was
imposing sentence pursuant to a plea agreement appellant had
reached with the People and there was nothing that “would
indicate to me that you have a mental health condition or
problem . . . . In fact, I can see that you actually provided to the
court some pro per motions that would indicate to me that you
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are quite lucid, and that you were able to understand the
consequences and the waiver of rights when you entered your
plea.” Appellant reiterated that when he entered his plea he
“just had busted my head inside the county jail . . . . I was not in
the right state when I did that. Medical Records will show that.”
The court again stated there was nothing in the record or the
plea colloquy to indicate appellant did not understand the
consequences of the plea agreement. The court stayed all court
costs and fines pursuant to People v. Duenas (2019)
30 Cal.App.5th 1157. On August 12, 2021, appellant filed a
notice of appeal.
On March 29,2022, counsel filed a Wende brief, informed
appellant of his right to file a supplemental brief, and sent him
copies of the transcripts of the record on appeal and the brief.
That same day we advised appellant he had 30 days within which
to personally submit contentions or issues he wants us to
consider. On April 13, 2022, appellant filed a brief which we
discuss below.
We have examined the record and are satisfied appellant’s
counsel fully complied with his responsibilities and no arguable
issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110;
People v. Wende, supra, 25 Cal.3d at p. 441.)
In his supplemental brief appellant raises issues he
previously raised in a petition for writ of habeas corpus filed in
the Superior Court under case No. SA101891. As reflected in the
Order re Writ of Habeas Corpus filed January 3, 2022, which
appellant attached to his supplemental briefing, the superior
court has already adjudicated these issues against him. In our
discretion, we will address these issues anew and likewise rule
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against appellant on the same grounds cited by the superior
court.
First, he argues that the abstract of judgment must be
corrected. The operative abstract of judgment is part of the
record on appeal. It shows an upper term three-year sentence for
second degree burglary. It also shows appellant was sentenced
“to prison per PC 1170(a) or 1170(h)(3) due to . . . current or prior
serious or violent felony.” This conforms with the reporter’s
transcript of the sentencing proceeding on July 28, 2021.
Appellant states his booking number is incorrect. An incorrect
booking number is a matter to be taken up with the California
Department of Corrections and Rehabilitation as it does not
appear material to any substantive issues appellant has raised on
appeal. Nor has appellant noted adverse consequences he has
suffered from the alleged incorrect denotation of his jail booking
number.
Next appellant contends that because the original sentence
was vacated (instead of amended), he lost custody credits he
otherwise would have received. He alleges ineffective assistance
of his counsel for not insisting that the sentence be amended
rather than vacated. However, appellant originally asked the
court to vacate his plea (and necessarily the sentence) because he
wanted a state prison sentence, not local jail time. When the
court suggested on January 23, 2020, that the proper remedy for
his problem was to vacate the sentence imposed for “local”
custody, he readily and personally agreed. It is also apparent he
agreed to this procedure because he wanted to fulfill unspecified
conditions he and his counsel had worked out with the People for
a new and lesser sentence. That he failed to fulfill those
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conditions and get the benefit of a different bargain cannot now
be ascribed to ineffective assistance of counsel.
Appellant contends he cannot be sentenced to the upper
term on a nonviolent offense. However, he agreed to the
negotiated upper term (in lieu of the nine serious and violent
felony enhancements alleged in the complaint). He cannot
complain about the sentence he ratified.
Appellant also states that one of the conditions of his plea
agreement was that he would not be subject to probation or
parole. The transcript of the terms of the plea agreement, as
recited by the court and counsel, does not support his contention.
Finally, appellant argues that his counsel was ineffective
for not moving for mental health diversion as his sentence.
Appellant agreed to plead no contest and receive a prison
sentence of three years in return for the People’s agreement to
move to dismiss the sentencing allegations (which they did).
Mental health diversion was not part of the plea agreement.
Counsel was not ineffective for holding appellant and the People
to the terms they had agreed upon.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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