People v. Bailey CA1/5 ( 2015 )

Filed 12/4/15 P. v. Bailey CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
A145099
v.
TODD A. BAILEY, (Alameda County
Super. Ct. No. C171261)
Defendant and Appellant.
Todd A. Bailey appeals from a judgment sentencing him to ten years in prison
after he pleaded no contest to a single count of attempted murder and admitted using a
deadly weapon (scissors) during the commission of that offense. (Pen. Code, §§ 187,
664, 12022, subd. (b)(1).)1 His court-appointed counsel has filed a brief raising no
issues, but seeking our independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).
We find no arguable issues and affirm.
I. BACKGROUND
On March 5, 2013, Oakland Police Department officers were dispatched to a home
and discovered Jane Doe 1 lying face down in a pool of blood. She had several stab
wounds on her body and head injuries requiring stitches and staples. Appellant, who was
in a relationship with Jane Doe 1, was sitting on a plastic milk crate and was arrested at
gunpoint. A pair of bloody safety shears were found on the floor inside the home.
1
Further statutory references are to the Penal Code.
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Jane Doe 1’s teenage sister, Jane Doe 2, told police appellant had been in the
bedroom choking, hitting and kicking Jane Doe 1. Jane Doe 2 saw appellant grab
something off the dresser and stick it in Jane Doe 1’s side before dragging her out to the
porch where he continued to beat her. When Jane Doe 2 tried to stop appellant from
continuing his attack on her sister, he punched Jane Doe 2 in the jaw.
On April 11, 2013, the district attorney filed an information charging appellant
with attempted murder and assault with a deadly weapon against Jane Doe 1 and
misdemeanor battery against Jane Doe 2. (§§ 187, 242, 245, subd. (a)(1), 664.) As to the
attempted murder count, it was alleged appellant had personally used a deadly weapon
and had personally inflicted great bodily injury under circumstances involving domestic
violence. (§§ 12022, subd. (b)(1), 12022.7, subd. (e).) As to the assault with a deadly
weapon count, it was alleged appellant had personally inflicted great bodily injury under
circumstances involving domestic violence. (§ 12022.7, subd. (e).) The information also
alleged appellant had previously served three separate prison terms. (§ 667.5, subd. (b).)
On September 27, 2013, the court granted appellant’s motion to represent himself
under Faretta v. California (1975) 422 U.S. 806. Less than a month later, on
November 22, 2013, appellant surrendered his right to represent himself and the court
appointed the Public Defender’s Office to represent him. On January 8, 2014, and June
9, 2014, the court denied appellant’s motions for substitute counsel under People v.
Marsden (1970) 2 Cal.3d 118 (Marsden). On July 9, 2014, the court granted appellant’s
motion to represent himself and on September 24, 2014, appellant indicated he wanted an
attorney. Appellant filed a written motion seeking counsel on September 25, 2014.
On October 20, 2014, represented by a deputy public defender, appellant entered a
plea of not guilty by reason of insanity, and two doctors were appointed to evaluate his
sanity at the time of the offenses. (See § 1027.) On December 5, 2015, the court denied
a Marsden motion and received medical reports from the doctors, one of whom
concluded appellant met the legal definition of insanity while the other concluded he did
not.
2
On January 23, 2015, after being fully advised of his Boykin-Tahl2 rights,
appellant pleaded no contest to the attempted murder count and admitted the weapon
allegation in exchange for an agreed-upon sentence of ten years in prison and dismissal of
the remaining counts and allegations. On February 24, 2015, the court sentenced
appellant to the nine-year upper term for attempted murder plus one year for the
enhancement and imposed various fines and assessments. Appellant was awarded 722
actual days and 108 days of good time/work time credits for a total of 830 days in
presentence credits.
Appellant filed a notice of appeal indicating the appeal was taken after the entry of
a guilty or no contest plea. He checked a box indicating he was appealing the denial of a
motion to suppress evidence under section 1538.53 and further stated as a ground for
appeal, “D.A. over charged on first count, and Due Process.” In an attached request for a
certificate of probable cause, appellant stated: “D.A. office over charged me, with malice
aforethought when said I was [mental]ly impaired and off drugs and alcohol, and heat of
passion at the time. [¶] Also the courts did not have a hearing on my pre-trial motions—
995 and suppressing evidence and others. The Judge said they were for trial but they
[were] pretrial motions.” The trial court denied the certificate of probable cause.
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note
that appointed counsel has filed a Wende/Anders brief raising no issues and appellant,
having been advised of his right to file a supplemental brief, has not filed one. We have
independently reviewed the entire record for potential error and find none.
The issues described by appellant in his request for a certificate of probable cause
lack merit because they are either unsupported by the record or were waived by his no
contest plea. (People v. Roper (1983) 144 Cal.App.3d 1033, 1038.) The court’s denial of
appellant’s Marsden motions similarly are not cognizable on appeal because they were
2
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
3
No such motion was ever filed.
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waived by his plea. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.) Because the
trial court denied appellant’s request for a certificate of probable cause under section
1237.5, we do not consider issues concerning the validity of his no contest plea, including
issues relating to the implicit withdrawal of his plea of not guilty by reason of insanity.
(See People v. Panizzon (1996) 13 Cal.4th 68, 76.) Additionally, because appellant
agreed to the ten-year sentence imposed by the court, any challenge to that term would be
an impermissible challenge to the validity of the plea. (Id. at pp. 76-78.)
We are satisfied appellant’s appointed attorney has fully complied with the
responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins
(2000) 528 U.S. 259, 283.) We deny appellant’s request, filed October 28, 2015, that we
appoint new counsel to represent him on appeal.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
SIMONS, ACTING P.J.
BRUINIERS, J.
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