People v. Codinha, D077651

• Court: California Court of Appeals
• Writing for the Court: IRION, J.
• Citation: 71 Cal.App.5th 1047,286 Cal.Rptr.3d 822
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph CODINHA, Defendant and Appellant.
• Docket Number: D077651
• Decision Date: 24 November 2021

71 Cal.App.5th 1047
286 Cal.Rptr.3d 822

The PEOPLE, Plaintiff and Respondent,
v.
Joseph CODINHA, Defendant and Appellant.

D077651

Court of Appeal, Fourth District, Division 1, California.

Filed November 24, 2021

Garrick Byers, Fresno, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

71 Cal.App.5th 1053

In this appeal, Joseph Codinha (Appellant) raises a number of issues as a result of rulings in four separate proceedings in the trial court: (1) the denial of Appellant's motion to withdraw his guilty plea ( Pen. Code, § 1018 ; subsequent undesignated statutory references are to this code); (2) the

71 Cal.App.5th 1054

denial of Appellant's motion to suppress evidence of drugs and drug paraphernalia (§ 1538.5); (3) the determination, based on Appellant's Pitchess motion ( Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 ( Pitchess ); see §§ 832.5, 832.7, 832.8; Evid. Code, § 1043 et seq. ), that the San Diego Police Department had no records responsive to Appellant's discovery request; and (4) the sentence, which included a stay of a one-year enhancement on one of the counts (§ 667.5, subd. (b)).

With regard to Appellant's motion to withdraw his guilty plea, the basis of the various arguments he raises on appeal is the contention that, at the time of the plea, his trial attorney failed to advise him regarding whether a possible consequence of his plea included an indeterminate commitment as a sexually violent predator (SVP) at the end of any prison term. As we explain, Appellant's presentation does not meet the standard for demonstrating ineffective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ( Strickland ): Appellant did not establish either that his attorney's performance fell below an objective standard of reasonableness or that he was prejudiced by the allegedly deficient performance. (See id. at pp. 687-688, 691-692, 104 S.Ct. 2052.) Counsel was not obligated to advise Appellant that an SVP commitment was a possible consequence of his plea; and Appellant did not present evidence that, if he had known about the potential for an SVP commitment, he would not have pled guilty.

With regard to the motion to suppress evidence, we will not reach the merits of Appellant's appellate arguments. As we explain, as part of his guilty plea, Appellant expressly gave up his right to appeal the denial of his section 1538.5 motion, and the trial court's certificate of probable cause as to the section 1538.5 motion did not affect his waiver.

286 Cal.Rptr.3d 826

With regard to the Pitchess motion, we have examined the sealed records from the trial court's in camera review. As we explain, in conducting its review, the trial court did not abuse its discretion.

Finally, as Appellant and the Attorney General agree, in the trial court's oral pronouncement of the sentence on count 3, the court erred by staying a section 667.5, subdivision (b) one-year enhancement. As we explain, due to a change in the law after Appellant's guilty plea and before Appellant's sentencing, at the time of sentencing Appellant was no longer subject to the one-year sentence enhancement based on a prior prison term.

Accordingly, we will strike the enhancement and affirm the judgment.

71 Cal.App.5th 1055

I. STATEMENT OF THE CASE

In an amended information, the district attorney charged Appellant with four offenses which occurred on two different dates. The counts alleged, respectively: (1) felony indecent exposure ( § 314, subd. (1) ); (2) misdemeanor possession of paraphernalia used for narcotics ( Health & Saf. Code, § 11364 ); (3) felony possession of a controlled substance, i.e., methamphetamine ( Health & Saf. Code, § 11377, subd. (a) ); and (4) misdemeanor possession of paraphernalia used for narcotics ( Health & Saf. Code, § 11364 ). In addition, the amended information alleged: a prison prior for violating section 314, subdivision (1) (§ 667.5, subd. (b)); five probation denial priors (two under § 314, subd. (1), and three under section 288, subd. (a)¹ ); the commission of count 3 while out on bail (§ 12022.1, subd. (b)); and the requirement for registration as a sex offender (§ 290, subd. (c)) in count 3.

Appellant filed a motion to suppress the drugs and drug paraphernalia evidence seized on March 28, 2018 (counts 3 & 4). (§ 1538.5.) At the close of an evidentiary hearing, the court denied the motion. Months later, Appellant filed a motion to reconsider the denial of Appellant's motion to suppress evidence (eventually refiled as a "renewed" motion to suppress evidence). After oral argument, the court denied the motion.

During the pendency of the suppression motion, Appellant filed a Pitchess motion directed to the records of the police officer who arrested him on March 28, 2018 (counts 3 & 4). The court conducted an in camera review of the files produced by the custodian of records of the San Diego Police Department and determined that there were no responsive records to be disclosed.

In May 2019, after the rulings on in limine motions at trial, Appellant entered a change of plea. He pled guilty to all of the charges and admitted all of the enhancement allegations.

After changing counsel, Appellant filed a motion to withdraw his plea on the basis that he "did not understand, and was misled by his [prior] attorney [regarding], the direct consequences of his plea." As relevant to the issues he raises on appeal, Appellant contended that he was not informed that there was a possibility that he could be deemed an SVP after completion of his sentence. The People filed written opposition, and the court held an evidentiary hearing at which the court received testimony from Appellant and from the

286 Cal.Rptr.3d 827

attorney who represented him at the hearing on his change of plea. At the

71 Cal.App.5th 1056

conclusion of the hearing, the court denied the motion, finding that, at the time Appellant pled guilty, "he was properly advised."

The court sentenced Appellant to eight years in prison, as follows: on count 1 ( § 314, subd. (1) ), a six-year term plus an additional two years for the out-on-bail enhancement (§ 12022.1, subd. (b)); and on count 3 ( Health & Saf. Code, § 11377, subd. (a) ), a four-year concurrent term. In addition, the court: sentenced Appellant to time served on counts 2 and 4 ( Health & Saf. Code, § 11364 ); struck the prison prior on count 1; stayed the prison prior on count 3; ordered various fines, fees, and assessments; and calculated total credits.

Appellant appealed from the judgment. In his notice of appeal, Appellant disclosed that the appeal would include challenges to the validity of his guilty plea and the denial of his section 1538.5 motion to suppress evidence. He also requested a certificate of probable cause, which the court granted.

II. STATEMENT OF FACTS

Counts 1 and 2 arose from events that occurred on March 22, 2018, and counts 3 and 4 arose from events that occurred less than a week later on March 28, 2018. Since the case did not go to trial, we base the following factual summary on the probation report² and Appellant's guilty plea.

A. March 22, 2018

On March 22, 2018, at approximately 9:00 a.m., the San Diego Harbor Police Department responded to a telephone complaint of a white male smoking a glass pipe and masturbating in a gold Cadillac sedan (with license plates identified) parked near the intersection of Shelter Island Drive and Anchorage Lane.

When the officers arrived on Shelter Island, they noticed a gold Cadillac sedan with the identified license plates parked on Shelter Island a few blocks away from Anchorage Lane. Nearby, they saw a white male—later identified

71 Cal.App.5th 1057

as Appellant—and informed him that someone had seen him smoking a glass pipe and masturbating. He denied the accusation, though admitted he had been arrested previously and was a registered sex offender. A records check confirmed that Appellant was a registered sex offender in compliance with his registration requirements.

Appellant consented to a search of his car. Appearing visibly nervous and sweating, Appellant said there was a glass pipe in the center console (which, Appellant explained, belonged to a friend). A search of the vehicle revealed a glass pipe with burnt black residue in the console and a pair of boxer shorts, a towel, and two tubes of hand lotion on the front passenger seat.

286 Cal.Rptr.3d 828

In a curbside lineup, the complaining party "positively identified [Appellant] as the suspect." Prior to the identification, the complaining party described the following events: He...