People v. Cotton

• Decision Date: 30 May 1991
• Docket Number: Nos. A052267,A050688,s. A052267
• Citation: 230 Cal.App.3d 1072,284 Cal.Rptr. 757
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben James COTTON, Defendant and Appellant. In re Ruben James COTTON, On Habeas Corpus.

Page 757

284 Cal.Rptr. 757

230 Cal.App.3d 1072

PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben James COTTON, Defendant and Appellant.

In re Ruben James COTTON, On Habeas Corpus.

Nos. A052267, A050688.

Court of Appeal, First District, Division 5, California.

May 30, 1991.

[230 Cal.App.3d 1076] John P. Mortimer, Oakland, for defendant and appellant.

Daniel E. Lungren, State Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., Martin S. Kay, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

HANING, Associate Justice.

Ruben James Cotton appeals his conviction by nolo contendere plea to sale of a controlled substance. (Health & Saf. Code, § 11352.) ¹ On appeal and in a consolidated petition for habeas corpus, he contends he was denied effective assistance of counsel at the probation revocation hearing, and that the trial court erred in failing to state reasons for refusing to reinstate probation.

PROCEDURAL HISTORY

On July 7, 1987, appellant pled nolo contendere to violating section 11352 as part of a plea bargain by which imposition of sentence was suspended and he was placed on three years probation with conditions including a jail term. In October 1989 probation was revoked, modified and reinstated.

In April 1990 appellant was arrested for again violating section 11352. Probation was revoked and substitute counsel was appointed after his original counsel declared a conflict. At the hearing following the probation revocation, defense counsel asked the court to permit appellant to remain on probation and enroll in a residential drug treatment program. Appellant specifically wanted to be admitted to the Drug Crisis Center housed in an East Oakland church. The court stated it would consider the possibility of residential drug treatment if appellant would agree to extend his probation from three to five years and waive his back credits so that he was still eligible for a year in county jail as a condition of probation. The court stated it would look into the possibility of a drug treatment program, but cautioned appellant that the chances were remote that the probation department would make such a recommendation, or that the court would go along with it. Appellant agreed to admit the probation violation subject to the understanding that he would receive no more than the mitigated three-year term, and if placed on probation, probation would be extended to five years and all back credits would be waived. The court referred the matter to the probation department for a recommendation as to whether appellant should be placed in a residential drug treatment program as a condition of extended probation, and suggested that defense counsel be in touch with appellant's probation officer.

The probation report noted that appellant was homeless, had little or no monetary resources, and had not yet enrolled in a residential alcohol treatment program as directed when he was last released on probation in February 1990. The report concluded that appellant's performance on probation was less than satisfactory, but stated that he could benefit from a residential drug treatment program in light of his stated motivation to pursue such treatment. However, it recommended reinstating and modifying probation to include 60 additional days in county jail, with termination of probation upon release.

At the sentencing hearing on the probation violation, defense counsel reminded the court of appellant's request to be placed in a drug treatment program. The court asked appellant if he had made any contact with any drug treatment program. Appellant stated he had not, because the drug treatment center does not accept collect phone calls. The court then sentenced appellant to three years in prison pursuant to the agreement made at the revocation hearing.

APPEAL

I

Appellant contends his appointed counsel for the revocation proceeding rendered ineffective assistance for two reasons: First, appellant contends defense counsel failed to investigate the validity of his underlying nolo contendere plea, which he claims was invalid because he was not advised that as a consequence thereof he would have to register as a narcotics offender. (§ 11590.) He argues that since his original plea was invalid, he had a complete defense to the revocation proceeding. Second, he contends that defense counsel failed to assist him in obtaining admission to a residential drug treatment program.

A.

The People rejoin that the first ground for appeal, defense counsel's failure to investigate and challenge the validity of his nolo contendere plea, is not properly before this court because appellant did not comply with the mandatory requirements of Penal Code section 1237.5 which, at the time appellant initiated this appeal, stated, in pertinent part: "No appeal shall be taken by a defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where the defendant has filed as part of the notice of appeal a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings."

The notice of appeal filed in the instant case merely states that it is an appeal from the final judgment of conviction and is signed by appellant, but not executed under oath or penalty of perjury. Appellant was not represented by counsel when he filed the notice of appeal.

The People also argue that appellant's claim of incompetence of counsel for failing to investigate and challenge the validity of appellant's underlying plea is not cognizable on appeal because appellant is really collaterally challenging the validity of the underlying plea, and that is an issue that could have been appealed in 1987, at which time Penal Code section 1237.5 required a certificate of probable cause. The People argue that because appellant had the right to appeal at that time and raise all matters going to the validity of his 1987 conviction, and because he failed to do so, he cannot raise on this appeal claims of error arising prior to pronouncement of the judgment.

The requirements of Penal Code section 1237.5 are inapplicable where the appellant seeks review on appeal of proceedings occurring subsequent to the entry of the plea. (People v. Osorio (1987) 194 Cal.App.3d 183, 187, 239 Cal.Rptr. 333.) " 'In determining the applicability of [Penal Code] section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.... If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of [Penal Code] section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea. [Fn. omitted.]' " (People v. Arwood (1985) 165 Cal.App.3d 167, 172, 211 Cal.Rptr. 307, quoting People v. Ribero (1971) 4 Cal.3d 55, 63-64, 92 Cal.Rptr. 692, 480 P.2d 308.)

In the instant case the appeal attacks the competency of counsel prior to the admission of probation violation. Penal Code section 1237.5 precludes our review of this claim.

B.

Appellant also contends he was denied effective assistance of counsel because his attorney never contacted him or his probation officer between his admission of violation and the sentencing hearing, and failed to assist him in obtaining admission into a residential drug treatment center.

"To make a successful claim of ineffective assistance of counsel, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable." (People v. Bell (1989) 49 Cal.3d 502, 546, 262 Cal.Rptr. 1, 778 P.2d 129; Strickland v. Washington (1984) 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674.)

Where the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the case must be affirmed on appeal unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory answer. (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859; People v. Bell, supra, 49 Cal.3d at p. 546, 262 Cal.Rptr. 1, 778 P.2d 129.) It appears from the transcript of the July 7, 1987 entry of plea hearing that prior to entering his nolo contendere plea, appellant was not advised on the record of the narcotics offender registration requirement. However, the appellate record sheds no light on what defense counsel did or did not do, and we are unable to conclude that a satisfactory explanation could not have been provided. We therefore must reject appellant's contention on appeal that counsel's performance was deficient.

II

Appellant next contends the court erred in failing to state reasons for refusing to reinstate probation after finding that probation had been violated. At the sentencing hearing the court stated: "The defendant's probation having been revoked, it is the judgment of the court that it shall remain in a revoked status and [he] be sentenced to state prison for a period of three years, the mitigated term, which term was agreed to at the time of the revocation petition as a part of [a] plea bargain and because he admitted his responsibility in the underlying offense early in the proceedings."

In People v. Slaughter (1987) 194 Cal.App.3d 95, 99, 239 Cal.Rptr. 337, the majority held that where a court initially suspends imposition of sentence and places a defendant on probation, it need not later, upon revoking probation and imposing sentence, state reasons for choosing...