People v. Ward CA5

Filed 11/18/15 P. v. Ward CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069432
Plaintiff and Respondent,
(Super. Ct. No. 13CM4942)
v.
RANDALL WAYNE WARD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Detjen, J. and Smith, J.
INTRODUCTION
Defendant and appellant Randall Wayne Ward was charged with multiple offenses
arising out of a domestic violence incident. Pursuant to a plea agreement, he pled guilty
to one count of infliction of corporal injury on a spouse, in exchange for dismissal of four
other counts and referral to the Kings County Collaborative Justice Treatment Court.
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende). We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The facts are taken from the probation report. On December 27, 2013, Hanford
police officer Dale Williams was dispatched to a residence on a report of a domestic
violence incident. Williams met with the victim, defendant’s wife Sandra, who reported
defendant began arguing with her, then went into the kitchen and flipped the kitchen table
onto its side, while continuing to yell at her. She began taking pictures of defendant’s
actions with her cell phone. Defendant became extremely agitated and grabbed the cell
phone from her hand.
Sandra’s son, Steven Williams, heard the commotion and came to investigate.
Steven told defendant to “knock it off,” at which point defendant became enraged,
dropped the cell phone he had grabbed from Sandra, then grabbed Steven with both his
hands and began choking him. Sandra attempted to pry defendant’s hands off her son,
but defendant punched Sandra in the face, knocking her back and stunning her.1
Defendant changed his chokehold on Steven, apparently increasing the hold.
Steven’s girlfriend, Natalie Garcia, heard screaming and yelling and heard Steven state he
was having trouble breathing. Garcia pulled out her cell phone and began recording the
1 For clarity and readability we refer to Sandra Ward and Steven Williams by their
first names; no disrespect is intended.
2.
incident. Steven managed to overpower defendant and get to his feet; Steven, Sandra,
and Garcia left the house and waited for police to arrive.
On February 24, 2014, an information was filed in Kings County charging
defendant with violating Penal Code2 section 273.5, subdivision (a), infliction of corporal
injury on a spouse, a felony; section 245, subdivision (a)(4), assault by means of force
likely to produce great bodily injury, a felony; section 242, battery, a misdemeanor;
section 594, subdivision (a), vandalism, a misdemeanor; and section 591.5, damage to a
wireless communication device, a misdemeanor.
On February 25, 2014, the trial court granted defendant’s request to represent
himself. Defendant was arraigned and pled not guilty to all charges. Stand-by counsel,
Stephen Girardot, was appointed to assist defendant. On March 17, 2014, Girardot
notified the trial court he was concerned about defendant’s competency. The trial court
asked a series of questions of defendant to assess his understanding of the proceedings.
After the questions from the trial court, defendant asked to speak with Girardot and the
two conferred. The trial court stated that “based on your behavior and your addressing
the Court today, I don’t think that you are incompetent. You may suffer from a mental
illness, but that doesn’t mean that you’re incompetent.”
The People indicated that they were offering a plea bargain to defendant. In
exchange for a plea to a violation of section 273.5, subdivision (a), the People would
agree to a grant of probation and a referral to the mental health court. The trial court
informed defendant he had to plead guilty, not no contest, for a referral to the mental
health court.
The People also offered that if defendant completed a batterer’s treatment
program, upon completion of the program, and if defendant remained in compliance with
“everything” throughout the 52-week period, the People would reduce the offense to a
2 References to code sections are to the Penal Code.
3.
misdemeanor. The trial court asked defendant if he understood that his plea would
require completion of a batterer’s treatment program and compliance with all the terms
and conditions of probation, after which the offense would be reduced to a misdemeanor.
Defendant indicated he understood.
Girardot informed the trial court that after further consultation with defendant, he
was “revamping” his lack of competence evaluation and believed that defendant was in
fact competent. The trial court revoked defendant’s pro per status and appointed Girardot
to represent defendant. The matter was trailed to allow Girardot to confer with
defendant.
When the matter was recalled by the trial court, the trial court went over the
People’s offer and the process for referral to the Collaborative Justice Court, mental
health division. The trial court explained defendant’s constitutional rights and the
consequences of entering a plea; defendant affirmatively stated he understood his rights
and the consequences of entering a plea. The trial court found the factual basis for the
plea was the preliminary hearing.
Girardot stated that he had had sufficient time to discuss the plea with defendant
and had advised defendant of the nature of the charges, possible defenses, and
consequences of the plea. The trial court asked defendant if he had any questions, to
which defendant responded, “No, your Honor.” The trial court accepted defendant’s
guilty plea to the charge and found the plea was entered freely and voluntarily. The
People moved to dismiss all the remaining counts. The other four counts were dismissed.
Defendant was sentenced on May 1, 2014. Imposition of judgment was
suspended; defendant was placed on formal probation for three years; and terms and
conditions of probation were set. Defendant was ordered to immediately report to the
probation office to sign the Collaborative Justice Treatment Court program enrollment
papers. Defendant indicated he understood the terms of his probation and Girardot stated
he gave a written copy of the terms to defendant.
4.
The trial court admonished defendant that if he violated probation, he would be
looking at a prison term. A 10-year criminal protective order was issued for Sandra and a
three-year protective order for Steven; defendant was informed of the terms of the
protective orders.
Defendant was accepted into the Kings County Collaborative Justice Treatment
Court. On May 20, 2014, defendant filed a notice of appeal and requested a certificate of
probable cause. The trial court granted the certificate of probable cause on May 22,
2014.
DISCUSSION
Appellate counsel filed a Wende brief on November 13, 2014. That same day, this
court issued a letter to defendant, notifying him that a Wende brief had been filed on his
behalf and providing him an opportunity to submit a supplemental brief. No
supplemental brief was filed.
Although no supplemental brief was submitted by defendant, in his request for a
certificate of probable cause he alleges that his trial counsel, Girardot, failed to properly
advise him and recommended he enter into the plea agreement.
That a defendant may have been persuaded, or was reluctant, to enter into a plea
agreement does not establish that the plea was involuntary. (People v. Ravaux (2006)
142 Cal.App.4th 914, 919.) Advice and persuasion from a defendant’s own attorney does
not vitiate a plea. (People v. Evans (1960) 185 Cal.App.2d 331, 334.)
Moreover, defendant affirmatively indicated he understood the consequences of
entering a plea and Girardot affirmatively represented that he had advised Ward of the
nature of the charges and possible defenses. Defendant represented to the trial court,
prior to entering his plea, that he had no further questions before pleading. Although the
plea agreement was very favorable to defendant, he appears to have changed his mind;
“buyer’s remorse,” however, is not a sufficient ground for setting aside a plea. (In re
Vargas (2000) 83 Cal.App.4th 1125, 1143-1144.)
5.
A review of the record does not disclose ineffective assistance of counsel. Any
claim of ineffective assistance of counsel should be raised in a petition for writ of habeas
corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) After an
independent review of the record, we find no reasonably arguable factual or legal issue
exists.
DISPOSITION
The judgment is affirmed.
6.