People v. Thurman
| Citation | 68 Cal.Rptr.3d 425,157 Cal.App.4th 36 |
| Decision Date | 21 November 2007 |
| Docket Number | No. E040720.,E040720. |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Nicholas E. THURMAN, Defendant and Appellant. |
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J.T. Carlton, Supervising Deputy Attorney General, and Sharon L. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Nicholas E. Thurman appeals from a judgment entered, in part, after a guilty plea. He asserts that the issues he seeks to raise are cognizable on appeal, despite his failure to obtain a certificate of probable cause, because the trial court assured him that he could do so. We conclude that the issues either lack merit or would not be cognizable on appeal even if a certificate of probable cause had been issued, or both. We also reject defendant's contention that an attorney who was appointed by the trial court to investigate possible grounds for a motion for a new trial should have been required to file a "Wende/Anders" pleading1 setting forth the issues he considered and rejected, in order to facilitate appellate review of the adequacy of his representation.
A jury found defendant guilty of assault by means likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1); count 2); criminal threats (Pen.Code, § 422; count 3); second degree robbery (Pen.Code, § 211; count 4); and false imprisonment by violence (Pen.Code, § 236; count 5). The jury found defendant not guilty of attempted murder (Pen.Code, §§ 187, subd. (a), 664), as charged in count 1. It also found him not guilty of the lesser offense of attempted voluntary manslaughter (Pen.Code, §§ 192, subd. (a), 664), but was unable to reach a verdict on the lesser included offense of attempted second degree murder. The jury also deadlocked on counts 6 and 7, unlawful driving or taking of a vehicle (Veh.Code, § 10851, subd. (a)) and carjacking (Pen.Code, § 215, subd. (a)), respectively, and on hate crime allegations (Pen.Code, § 422.75, subd. (a)).2
The trial court declared a mistrial as to counts 1, 6, and 7 and the hate crime allegations, and set the matter for retrial. The court granted the prosecution's motion to dismiss the attempted murder charge. After the court denied defendant's motion to dismiss counts 6 and 7, defendant agreed to a plea bargain whereby he pled guilty to carjacking (count 7) in exchange for a three-year concurrent term on that count and dismissal of count 6 and the hate crime allegations.
The court sentenced defendant to an aggregate prison term of four years. Defendant filed a timely notice of appeal. He did not seek a certificate of probable cause.
Outraged by a perceived homosexual advance, defendant, assisted by an accomplice, beat and kicked the victim, hog-tied him with telephone cords, gagged him, and placed him face down in a bathtub filled with water. Defendant told the victim that he was going to kill him.
Before placing the victim in the bathtub, the men took the victim's cell phone, wallet, credit cards, keys and cash from his pockets. After being submerged face "down for about 10 seconds, the victim managed to flip himself over. When defendant and his accomplice saw that the victim had freed one arm from the bindings, they fled from the motel room where the incident took place.
The victim extricated himself from the bindings and exited the room. He saw that his van was gone. It had been parked directly outside the door to the motel room. He went to the motel manager's office and asked a clerk at the front desk to call, 911. The telephone cords were still attached to a belt loop on his pants, and he was wet, bruised and bleeding. The victim suffered cuts to his head and had bruises on his shoulder, chest, back and head.
Defendant admitted to police that he had punched and hit the victim and had tied him up, taken the items from the victim's pockets, and placed him in the bathtub. He admitted as well that he took the victim's van and drove it to Pomona, where he abandoned it. However, he insisted that he had acted alone and that there was no one else in the motel room at the time. He claimed that the assault was justified by the victim's sexual advances.
The jury deadlocked on count 6, unlawful taking or driving of a vehicle, and on count 7, carjacking. After the prosecutor announced his intention to retry defendant on those counts, defendant filed a motion to dismiss both counts. The court denied the motion. Thereafter, defendant agreed to plead guilty to count 7 in return for a concurrent three-year term on that count and dismissal of count 6. His plea was accepted by the court, count 6 was dismissed and judgment was entered on count 7. Defendant now contends that the court erred in denying his motion, and that the conviction on count 7 must be "stricken without remand for retrial" because the carjacking charged in count 7 was based on the same conduct as the robbery charged in count 4. Defendant also contends that the judgment on count 7 must be reversed and the charge dismissed because there was insufficient evidence that the car was taken from the victim's person or his immediate presence, as required by section 215, thus negating the factual basis for the plea.
Section 1237.5 provides, A certificate of probable cause is a condition precedent to any appeal within its scope, and the defendant must comply with all statutory requirements. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099, 81 Cal.Rptr.2d 301, 969 P.2d 146.) The Attorney General contends that, having pled guilty on count 7, defendant cannot attack the judgment on that count without having obtained a certificate of probable cause.
Defendant concedes that he did not obtain a certificate of probable cause. He contends, however, that the trial court assured him that he could appeal from the judgment with respect to all issues pertaining to count 7. He contends that this assurance was part of the plea bargain and must be specifically enforced as the "functional equivalent" of a certificate of probable cause. He bases this contention on the following colloquy:
We see no basis in the record for concluding that the trial court intended to waive the requirements of section 1237.5. Neither the court nor either party mentioned waiving a certificate of probable cause. In the absence of any evidence to the contrary, we conclude that when the court said that defendant could file a notice of appeal, it meant that he could file the notice of appeal, check the box indicating that it was an appeal after a guilty plea, and execute the request for a certificate of probable cause, which is a part of the Judicial Council form used for felony notices of appeal. We also see no basis in the record for concluding that defendant understood the court's assurance that he could appeal to mean that he could do so without having obtained a certificate of probable cause, and that he based his decision to enter into the plea bargain on that understanding.
Even if we assume that the court did intend to assure defendant that it would waive the requirements of section 1237.5, however, such a promise is unenforceable because courts have no authority to waive any of the requirements for issuance of a certificate of probable cause. (People v. Mendez, supra, 19 Cal.4th at p. 1098, 81 Cal.Rptr.2d 301, 969 P.2d 146.) And, even if we further assume that in deciding to enter into the plea bargain, defendant relied on the understanding that he did not need to obtain a certificate of probable cause in order to preserve his right to appeal, his only remedy is to seek to withdraw his guilty plea: When a trial court has agreed to preserve a defendant's right to appeal in a manner contrary to law, or has purported to confer a right to appeal where none exists, and the defendant has relied on the promise to his detriment, the defendant's remedy is to file a motion to withdraw his guilty plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896, 135 Cal.Rptr. 786, 558 P.2d 872; People v. Hollins (1993) 15 Cal.App.4th 567, 574-575, 18 Cal.Rptr.2d 785.) He cannot specifically enforce the agreement.4
In any event, defendant's contention that he cannot lawfully be convicted of both robbery and carjacking based on the same conduct is without merit.5 With one exception not pertinent here, a defendant may be convicted of multiple offenses based on the same conduct; however, he can be punished only for the offense which carries the greatest punishment. (People v. Ortega (1998) 19 Cal.4th 686, 692-693, 80...
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