People v. Waters CA3 ( 2024 )

Filed 1/10/24 P. v. Waters 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sutter)
----
THE PEOPLE, C096851
Plaintiff and Respondent, (Super. Ct. No. CRF21-
0000453)
v.
JOHNTA LEXUS WATERS,
Defendant and Appellant.
Appointed counsel for defendant Johnta Lexus Waters has asked this court to
conduct an independent review of the record to determine whether there are any arguable
issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Waters filed a supplemental
brief raising two issues. First, he argues he is factually innocent of the charges and
entitled to a jury trial. Second, he argues the trial court wrongfully denied his Marsden1
motions. We disagree. Finding no arguable error that would result in a disposition more
favorable to Waters, we will affirm the judgment.
1 People v. Marsden (1970) 2 Cal.3d 118.
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FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of four separate incidents. In the first, A.R. reported his SUV
stolen. Officers found the stolen SUV in the parking lot of a hotel a few days later. The
hotel clerk saw Waters sitting in the driver’s seat, but Waters got out of the car before the
officers responded to the scene. When the officers arrived, Waters approached them and
said his brother allowed him to borrow the car. A.R. identified Waters as the person he
let test drive the car the day before.
In the second incident, a police officer responded to a report Waters locked
himself in the laundry room of an apartment complex. The witness at the apartment saw
Waters enter the laundry room. When the witness tried to open the door, Waters shut the
door, locked it, and said he wanted to charge his phone. When they searched him,
officers found Waters had a glass pipe for smoking methamphetamine. In the third
incident, officers responded to a call that Waters and another man were in the laundry
room of a different apartment complex. This time officers found Waters had metal
knuckles and 0.32 grams of methamphetamine.
In the final incident, officers responded to another complaint that Waters entered
another laundry room area of an apartment. This victim reported she was frightened by
Waters’s presence. When the officers instructed Waters to leave the laundry room, he did
so, and the officers detained him without incident. Waters told the officers he entered the
laundry room to charge his cell phone.
The information charged Waters with two counts of first degree burglary and
enhancements that a person, other than an accomplice, was present in the residence
during the burglary. (Pen. Code,2 §§ 459, 667.5, subd. (c)(21).) It also charged Waters
with possession of controlled substance paraphernalia (Health & Saf. Code, § 11364,
subd. (a)), possession of a controlled substance (Health and Saf. Code, § 11377,
2 Undesignated statutory references are to the Penal Code.
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subd. (a)), possession of metal knuckles (§ 21810), and receiving stolen property (§ 496d,
subd. (a)).
Waters executed a plea agreement to plead no contest to the burglaries, possession
of the stolen vehicle, and to admit one of the enhancements. The maximum potential
sentence under that plea was eight years in prison. In exchange for his plea, the plea
agreement required the trial court to grant Waters probation and credit him with time
served. Waters initialed the portions of the agreement that said he understood he had the
right to a jury trial, the right to confront and cross-examine witnesses, the right to remain
silent, the right to present evidence, the right to compel witnesses to come to trial, and the
right to testify. Waters waived and gave up each of those rights.
In open court, the trial court explained the plea to Waters and Waters said he
understood its terms. Waters told the court he read the plea form and went over it with
his attorney. He also said he understood the rights he was giving up and the
consequences of his plea. Waters stated no one promised him anything or threatened him
to get him to enter the agreement and that he was not under the influence. Waters also
stated he had sufficient time to speak with his attorney and he had no questions.
The trial court took the factual basis for the crimes from counsel pursuant to
People v. West (1970) 3 Cal.3d 595.
Waters pled no contest to the two burglaries (§ 459), admitted one of the
enhancements (§ 667.5, subd. (c)(21)) and pled no contest to receiving stolen property
(§ 496d, subd. (a)). The trial court accepted the pleas and found Waters made them
knowingly, intelligently, and voluntarily, and dismissed the remaining counts and
enhancements subject to a Harvey3 waiver. The court released Waters on his own
recognizance. Waters failed to report to probation as required or to appear at his
3 People v. Harvey (1979) 25 Cal.3d 754.
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sentencing hearing scheduled for September 13, 2021. He was subsequently arrested and
confined in the Sutter County jail pending his sentencing.
A series of eight hearings ensued between April 11, 2022 and the July 1, 2022
sentencing of Waters. At the first hearing, the trial court told Waters that the court was
not certain if it would still accept the plea given his failure to appear at sentencing and it
wanted to continue the hearing so that the prosecutor who negotiated the plea agreement
could be present. For the first time, but not the last, Waters asserted he did not
understand the charges to which he pled. The court explained to Waters if he insisted
going forward that day the court was inclined to reject the plea agreement, but it preferred
to continue the matter a week. When Waters asked if he might be able to go to trial, the
court responded, “maybe” and the parties agreed to a continuance.
At the next hearing, Waters was represented by a different public defender than
the one who had previously represented him. That attorney asked the trial court to
continue the matter for another week because Waters made comments that suggested
there may be issues with his plea. Counsel believed the attorney who was present at the
plea should be the one to represent him on his questions. Waters agreed, and the trial
court continued the matter again.
In the hearings that followed, Waters repeatedly and incorrectly asserted the judge
at the first hearing promised to allow him to withdraw his plea and go to trial. He also
asserted he wanted to withdraw his plea and go to trial because he “forgot what [he] plead
to.”
At the April 20, 2022 hearing, counsel asked for a continuance to see if a colorable
claim could be made to request the withdrawal of Waters’s plea. Counsel reported back
she was unable to discover any ground and furthermore she was unsure Waters’s claim
that he did not remember anything at the plea hearing was an accurate statement.
At the April 20 and April 29, 2022 hearings, Waters sought to replace his
appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118. The trial court
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held in camera hearings on both requests and denied them. We will address the pertinent
facts of those hearings below.
During a later hearing in May, counsel declared a doubt as to Waters’s mental
competency pursuant to section 1368. The trial court suspended the criminal proceedings
and appointed a psychologist to assess Waters’s competency to stand trial. Following
receipt of the competency evaluation report a little more than a month later, the court
found Waters competent to stand trial and reinstated the proceedings.
On July 1, 2022, the trial court dismissed the receiving stolen property count,
suspended imposition of sentence, and granted Waters probation as provided for in the
plea agreement. The trial court imposed a $300 restitution fine (§ 1202.4), imposed and
suspended an equal probation revocation fine (§ 1202.44), reserved jurisdiction over
restitution, and imposed court operations fees of $80 (§ 1465.8), and conviction
assessment fees of $60 (Gov. Code, § 70373). The trial court credited Waters with 205
days of actual custody credit and 204 days of local conduct credit for a total of 409 days
of presentence custody credit. Waters filed a notice of appeal with this court in August
2022. His Wende brief was filed in September 2023, and this case was fully briefed on
December 12, 2023.
DISCUSSION
Appointed counsel for Waters has asked this court to conduct an independent
review of the record to determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Waters was advised by counsel of his right to
file a supplemental brief within 30 days from the date the opening brief was filed.
Waters filed an untimely supplemental brief which we have accepted.
A. Withdrawal of Plea
In his supplemental brief, Waters raises arguments that he is factually innocent of
the charges and entitled to a jury trial. Given that Waters pled no contest pursuant to the
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plea agreement, we must determine whether Waters was entitled to withdraw his plea and
proceed to a trial. The record does not support Waters’s claim.
A trial court may allow a defendant to withdraw a guilty plea upon his or her
showing of good cause based on clear and convincing evidence. (§ 1018; People v. Cruz
(1974) 12 Cal.3d 562, 566.) For present purposes, a plea of no contest is considered the
same as a plea of guilty. (§ 1016.) A defendant must establish that his free will was
overcome, not merely that he had a change of heart. (People v. Nance (1991) 1
Cal.App.4th 1453, 1456.) “ ‘Mistake, ignorance or any other factor overcoming the
exercise of free judgment is good cause for withdrawal of a guilty plea’ under
section 1018 [citation], and section 1018 states that its provisions ‘shall be liberally
construed . . . to promote justice.’ A defendant seeking to withdraw a guilty plea on
grounds of mistake or ignorance must present clear and convincing evidence in support
of the claim. [Citation.] A trial court’s decision whether to permit a defendant to
withdraw a guilty plea under section 1018 is reviewed for abuse of discretion.” (People
v. Patterson (2017) 2 Cal.5th 885, 894.)
Here, Waters’s first claim is he “forgot what [he] plead to.” He also repeatedly
claimed he had an agreement with the first sentencing judge to withdraw his plea and go
to trial. The record supports neither argument. Waters initialed and signed a change of
plea form indicating he understood the consequences of his plea, he had sufficient time to
discuss the consequences of the change of plea with his attorney, and he verbally
affirmed he understood the terms of the plea agreement, the rights he was giving up, and
the consequences of his plea when asked by the trial court. In open court, Waters stated
he was neither cajoled nor threatened into agreeing to the negotiated resolution. Waters
also said he had plenty of time to talk to his attorney and had no questions. Based on
these facts, the trial court found Waters’s plea was knowingly, intelligently, and
voluntarily made. Further, when the issue of withdrawing the plea arose, Waters’s own
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counsel stated on the record she found no basis to submit a request to withdraw his plea
and suggested her client’s claim he remembered nothing was not accurate information.
In response to Waters’s second point, the transcript of the hearing on April 20,
2022, does not show the trial judge agreed to allow Waters to withdraw his plea. Nor is
there any agreement to that effect reflected anywhere else in the record. Accordingly,
there is no clear and convincing evidence in the record that Waters should be allowed to
withdraw his plea.
B. Marsden Motions
Waters’s supplemental brief argues his attorney took “disadvantage” of him, was
working against him, was not willing to fight for him, and had a conflict of interest.
These claims bring into focus the trial court’s denial of his two Marsden motions which
we conclude were not an abuse of discretion.
1. Additional Facts
At the April 20, 2022 Marsden hearing, Waters told the court that his attorney was
not doing anything to get his case dropped. He also expressed concern his attorney was
talking to his sister-in-law and mother without his permission. Counsel represented to the
trial court that Waters’s family came to her with a concern that Waters should get into a
drug program and maybe they could hire him an attorney. Counsel stated she shared only
information that was publicly available. When Waters told her he did not want her to talk
with these people anymore, she told him she would not. The trial court denied this
Marsden motion.
During the second Marsden hearing, Waters told the trial court he was concerned
that his attorney did not tell him what his mother and sister-in-law said to her during the
conversations he had previously mentioned. Once again, counsel recited on the record
she met with his family and shared only generally public information about the case. She
explained those conversations to Waters and that was the extent of her conversation with
him. She represented she has honored Waters’s request that she not speak to them
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further. Additionally, counsel did not believe Waters would have more effective
communication with a different attorney. The trial court again denied the motion stating
it did not believe appointing another lawyer would be productive.
2. Legal Framework
“Marsden established a defendant’s right to raise the issue of ineffective assistance
of counsel by means of a motion to discharge his or her attorney and appoint a new one.
‘ “ ‘When a defendant seeks to discharge his appointed counsel and substitute another
attorney, and asserts inadequate representation, the trial court must permit the defendant
to explain the basis of his contention and to relate specific instances of the attorney’s
inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly
shows that the first appointed attorney is not providing adequate representation [citation]
or that defendant and counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result.’ ” ’ ” (People v. Whitmore (2022) 80
Cal.App.5th 116, 128.)
“We review the court’s decision declining to relieve appointed counsel under the
deferential abuse of discretion standard.” (People v. Whitmore, supra, 80 Cal.App.5th at
p. 128.) “ ‘Denial is not an abuse of discretion “unless the defendant has shown that
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel.” ’ ” (People v. Ng (2022) 13 Cal.5th 448, 500.)
3. Application
Here, the trial court allowed Waters to fully state his complaints in two separate
hearings, inquired into them, and asked counsel to respond. Waters’s stated reasons
demonstrated neither constitutionally inadequate assistance of counsel nor a fundamental
breakdown of the relationship between Waters and counsel. (People v. Webster (1991)
54 Cal.3d 411, 435-436.) The record disclosed counsel discussed only publicly available
facts with Waters’s family members and stopped speaking with them when Waters asked
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her to stop. We conclude the trial court’s denial of his motion to remove his attorney was
not an abuse of discretion.
C. Wende Review
We have undertaken an examination of the remainder of the record and find no
arguable error that would result in a disposition more favorable to Waters.
DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
EARL, P. J.
/s/
ROBIE, J.
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