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Filed 7/25/16 P. v. Perry CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. JOSHUA LEE PERRY et al., Defendants and Appellants. A144901

(Contra Costa County Super. Ct. Nos. 51314970, 41764893 & 51309616)

Defendant s Joshua Perry and Feli cia Viscaina appeal f rom judgment s entered
pursuant to a negotiated disposition resolving three cases. In case N o. 5130961 6
, they pleaded n o contest to first degree burglary (Pen. Code , §§ 459, 460 , subd. (a)) 1 and admitted several enhancements, including that they had suffered a prior “strike” conviction ( § § 667, subds. (b)

– (i), 1170.12, su b d s. (a)

– (d)). In case No. 5131497 0
, they pleaded no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted suffering a prior “strike” conviction (§ § 667, subds. (b)

– (i), 1170.12, suds. (a)

– (d)). In case

No. 41767893, Viscaina pleaded no contest to receiving stolen property (§ 496, subd. (a)). In accordance with the terms of the negotiated disposition, the trial court sentenced Perry to a total term of 22 years in state prison and Viscaina to a total term of 25 years in state prison (the upper term doubled for 22 years on the manslaughter conv iction, one

third the midterm for one year four months consecutive sentence on the burglary conviction, one

- third the midterm for eight months consecutive on the receiving

1 All further statutory references are to the Penal Code unless otherwise indicated.2

conviction, and one year for the prior strike)

. Perry raises a single issue on appe al

— that the trial court erroneously failed to hold a Marsden 2 hearing on the continued date for sentencing. Viscaina asks this court for an independent review of the record to determine whether there are any issues that would , if resolved favorably to her , result in reversal or modification of the judgment. ( People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) We conclude there was no error and that are no arguable issues presented for review , and affirm the judgment.

D ISCUSSION 3

A. Perry’s Appeal On September 11, 2013, the trial court denied Perry’s section 995 motion based on
the challenged admissibility of a dying declaration wherein the victim i dentified
defendant. A little over a year later , on November 24, the court was apprised defendant was contemplating pleading to the burglary case, allowing the murde r case to go to trial
, and codefendant Felicia Viscaina desired to accept a plea deal resolving all her outstanding cases

. Perry’s counsel raised the issue of wheth er there was a factual basis
for the out

- on

- bail/OR enhancement . T he trial court agreed the issue should be resolved, observing counsel “would be engaging in ineffective assistance of counsel by advising his client to admit to something or to plead no con test to something that could not possibly be true.” Ultimately, Perry and Viscaina executed felony advisement and waiver of rights forms, were fully advised of the rights they were waiving by the trial c ourt, and entered

no contest pleas to some of the pe nding charges, in anticipation of the murder case being
sent out for tr ial the following week. The se were “open” pleas, leaving sentencing to the

discretion of the court following completion of the anticipated murder trial. With the

2 People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ).

3 Given the issue on appeal, we do not separately set forth the facts and procedural history, instead, reciting the relevant events in connection with our discussion of the issue.3

express agreement of Perry and Viscaina, the court continued the resolved cases to
December 11 for status and to s et for sentencing. On December 10, the parties appeared for tria l on the murder case. The defense filed a number of in limine motions, including to exclude evid ence under Miranda 4 and
pote ntially for severance

. The following day, the court indicated it had not reached even a tentative on the
Miranda issue , but was likely to grant a severance if the prosecution intended to present evidence of Viscaina’s post ar rest statements. The prosecut or advised he could, and would, proceed without the problematic statements if that was ultimately the ru ling of the

court. After a brief recess, and just prior to the court commencing hardship rulings as to potential jurors, the parties advised the court they were continuing to discuss a global
resolut ion of the cases. The court agreed to give the parties a brief opportunity to conclude discussions, but made it clear that once it called up the jury panel and
commenced hardshi p examination, the court would not entert ain any plea deal. At the end of the recess, the parties advised the court there was a negotiated disposition.

As to Perry , the prosecutor stated there would be an amendment to count 2 of the information, to char ge voluntary manslaughter (§ 192), instead of murder, to which Perry would plead no contest and additionally admit one “strike” allegation, with the expectation he would be sentenced to 22 years (11 years on the manslaughter charge,
doubl ed for the “strike ”). The conviction would be of a “violent felony” for which he would receive 15 percent credit for time served. The sentence to be imposed in connection with his prior plea was to run concurrently with the agreed

- to sentence o n the
trial docket. Perry a nd Visca i na also expressly agreed the trial judge could do the

sentenc ing on all the cases. Perry and Visca ina executed additional felony advisement and waiver of rights forms, were fully advised of the rights they were waiving by the court, and entered n o contest to pleas in accordance with the global neg otiated disposition.

4 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).4

The court’s voir dire included the following colloqu y as to defendant :

“ The Court: Again, having reviewed a good deal of materials, in connection with the motions in limine, I’m personally aware that there is a factu al basis for the plea. [¶] Mr. Perry, you’re charged in [amended] Count Two of the information with a violation of Penal C ode section 192(a), voluntary man slaughter, on or about November 8 th , 2012 with the victim bein g Vaughn Walker. [¶] What is your plea to that charge?

“ Defendant Perry : No contest.

“[¶] . . . [¶]

“ The Court: Mr. Perry, you also have the right to be sentenced within 20 days of today. [¶] Do you agree to waive that right so I could set the senten cing date for February 6 th ?

“ Defendant Perry: Yes, I do. ”

All parties appeared for sentencin g on February 6, 2015. At the outset of the hearing, the trial court stated it had a request that the victim’s family members be heard and the matter be continued again for sentencing to March 13 to allow other individuals
to attend. Defense counsel both agre ed to this proposa l. On March 13, the following exchange occurred , quoted at length given defendant’s assertion on appeal :

“ The Court: . . . Are all side s prepared to proceed on the sentencing?

“ Mr. Caron [prosecutor]: We are, your Honor.

“ Mr. K uluk [ Perry ’s counsel]: On behalf of Mr. Perry, we are not prepared to proceed. [¶] My client’s giving me some new information this morning that I need to look into.

“ The Court: Ms . Harrigan [Visca in a’s counsel]

.
“ Ms . Harrigan: Your Honor, Ms. Visca i na has asked me to continue the sentencing hearing until the later part of April. [¶] I wasn’t aware of her request until just now. She has some personal matters that she would like either her family to be able to take care of or perhaps somebody from our office to be able to hand le for her, and that’s going to take a little bit of time.

“ The Court: Mr. Caron, what’s the People’s position on the request to continue the sentencing?

“ Mr. Caron: Your honor, the People would object. [¶] The plea in this case was a number of months a go. A gr oup of people are also here. M s. Peoples is also here. She’s prepared to address the Court, and I believe that we should go forward with sentencing at this time.5

“ [Discussion off record.]

“ The Court: Counsel need time with their clients, let me know.

“ Mr. Kuluk : Yes. I think we do need a little bit of time this morning.

“ The Court: Let me just give you m y thoughts, and that is, that in light of the fact this is a negotiated disposition, I don’t really see any reason in continuing the matter further if it was continued to today so that some of the interested parties could be present. And I don’t wish to inconvenience them. [¶] So I’m likely to proceed with the sentencing but want to give counsel a chance to discuss fully with their clients and make any record that’s necessary on the issue. [¶] So, Mr. Kuluk and Ms. Harrigan, let us know when you are ready.

“ Mr. Kuluk: Thank you.

“ Ms. Harrigan: Yes, your H ono r , I will.

“ [Brief recess taken .]

“ The Court: Recalling People versus Joshua Pe rry and Felicia Visca in a. [¶] Counsels’ appearances again please. [¶] . . . [¶] Mr. Kuluk, what’s your position on Mr. Perry’s preparedness to proceed with sentencing?

“ Mr. Kuluk: Your Honor, Mr. Perry would like me to file a motion to withdraw his plea

.
“ The Court: What’s Ms. Viscaina’s position, Ms. Harrigan?

“ Ms. Harrigan: Ms. Viscaina is not

— does not want to withdraw her plea. . . .

“ [The People object to any further continuance

. . . . ]

“ The Court: Okay. And before I move back to Mr. Kuluk, can you remind me, was this a package offer?

“ Mr. Caron: It was, your Honor. “[¶] . . . [¶]

“ Mr. Kuluk: Your honor, there are a number of factors. I did speak very frankly with Mr. Perry this morning so he understands that if a plea withdrawal was succe ssful, there would be no offers, it would be going to trial. He does understand that, and he does wish to go to trial in the case. [¶] Your Honor, I think part of what happened here is when we were in court last February and the decedent’s mother address ed the Co u rt, she called Mr. Perry by the name of the third co

- defendant Mr. Murray who has

— it’s always been the position is the killer in this case, the true shooter. [¶] I think that that realization at that moment was very difficult to stomach. Mr. Pe rry did not kill that gentleman and wants to go to trial.

“ The Court: Okay. Ms. Harrigan
, do you wish to be heard on the issue of Mr. Perry’s request for a continuance [of] the sentencing so he can file a motion to withdraw his plea which may affect Ms. Viscaina’s plea?6

“ Ms. Harrigan: Your Honor, it’s our position that Ms. Viscaina has pled and is prepared to go forward with sentencing. . . . [¶] . . . [¶]

“ The Court: . . . And Mr. Caron, anything else you want to say?

“ Mr. Caron: No, your Honor.

“ The Court: Mr. Kuluk, is the matter submitted?

“ Mr. Kuluk: Yes, it is.

“ The Court: Okay. I’m going to deny Mr. Perry’s motion for a continuance at the sentencing date

— to file a motion change his plea. [¶] I find the request untimely both as to the con tinuance and the request suddenly to withdraw a plea four months after the plea was entered. [¶]

. . . [¶] The parties have all been planning on the sentencing for today for quite a bit of time. We initially set it for February 6 th . So there were two mo nths there with no suggestion of a ch a nge of plea. [¶] Another month has gone by, and suddenly the request to change a plea in my view is untimely. [¶] The victim [ sic ] has been brought her e today, the victim’s family, in o rder to make additional comment s. [¶] And therefore I find the motion to continue the sentencing and the request to file a motion to withdraw the plea untimely. We are going to proceed with sentencing. [¶] As to Mr. Perry, M r

. Perry has pled guilty on docket nu mber 5

–

“ Mr. Perry: Y ou want me to tell him no? Somebody is going to tell him no. I’m going to tell him no. I’m not going to take it.

“ [Discussion off record.]

“ The Court: Back to where I left off. [¶]

. . . [¶] Mr. Kuluk, do you waive arraignment on the information for purposes of judgment and sentencing?

“ Mr. Kuluk: Yes.

“ The Court: Any legal cause why sentencing should not occur?

“ Mr. Kuluk: Your Honor, my client is concerned with the Court’s denial of our request to pursue his motion to withdraw a plea. [¶] He’s telling me that he believes that I was ineffective in the last few weeks since our last sentencing date in not discussing issues with him further and filing a motion to withdraw a plea before today.

“ The Court: I do understand your client’s position. [¶] I’ve already ruled on the request for a continuance of the sentencing. So other than

— so I don’t consider that legal cause because I’ve already ruled on that. [¶] Any other issues that would prevent us from proceeding with sentencing?

“ Mr. Kuluk: Not tha t I know of.

“ [Comments on sentencing by interested persons.]

“ The Court: Thank you. [¶] I will need counsel’s positions on the outstanding cases for Mr. Perry, two mandatory supervision violations and the open misdemeano r

. . . . [¶] . . . [¶] But I’ ll move on to Mr. Kuluk. On behalf of Mr. Perry, any comments you want to make or any other matters you want me to consider in connection with sentencing?7

“ Mr. Kuluk: Mr. Perry wants to address the Court.

“ The Court: Okay. Yes, sir, Mr. Perry.

“ Mr. Perry: Your honor, I’m asking to withdraw my plea. I understand I have had a lot of months in order to change my plea. [¶] As the district attorney has pointed out that, yes, we did get all the way to jury selection. And until that point, I was abs olutely ready to go to trial. It took me until this moment to figure that out. It shook my confidence for just a moment and I agree d to this plea. [¶] That w a s my mistake, and since then, I have been trying to get back

— trying to withdraw my plea. Yes, this is coming here to your attention right now because once again I haven’t

— my attorney has not come to see me since that moment. Otherwise this would have been hopefully been addressed months before. [¶] I can’t make these

— I c an’t make these moves on m y own. He’s filed his motions, what not. But this is my decision. This is

— I would really like to withdraw my plea.

“ The Court: Okay. Is there anything else you want to say about the actual sentencing?

“ Mr. Perry: No.

“ The Court: Okay. As I’ve advis ed earlier, I’m denying the request to continue the sentencing so you can file a motion to withdraw your plea on a number of bases. [¶] First, it has been three months since the pleas were entered after considerable discussion and negotiation between the p arties. [¶] At the time I took the pleas, I assured that they were knowing, voluntary, and intelligent, that that was what you wanted to do that day. [¶] I assured there was a factual basis for the plea, that is, that I believed that there’s a reason f

or you to plead guilty to voluntary manslaughter because you in fact committed the crime.

“ Audience member: No, he didn’t.

“ The Court: And because I find your related request to withdraw your plea insubstantial and incredible. We were here February 6 th
, two months after your plea, to continue the matter until today. There was no mention of withdrawin g your plea at that time. [¶] So I don’t consider your claim that you have been planning to withdraw your plea for months. [¶] And the motion is untimely at this point, so we’re proceeding with sentencing. . . .

“ [Sentencing and consideration of restitution.]

“ Mr. Caron: Your Honor, at this point then, I would ask that the amount of $7,125.81 of victim restitution be ordered as followed: [¶]

. . . [¶] 1 ,699 dollars payable to Amy and Christopher Calihan . . . .

“ The Court: I couldn’t hear that. I heard Christopher Calihan. What was her name?

“ Mr . Carron: Amy Calihan. [¶] That’s $5,040.

“ Mr. Perry: Fuck that. I want to fight that too.

“ The Court: Mr. Kuluk, your position on the restitution?

“ Mr. Kuluk: We just received these documents today. . . .8

“ [Discussion off record.]

“ Mr. Perry: We agreed on Ms. Flowers.

“ Mr. Kuluk: If we could go ahead and set a hearing, we’ll be good. . . .

“ [Settin g of restitution hearing date.]

“ The Court: Okay. So Mr. Perry . . . . [¶] As the result of my sentence, you do have the right to appeal from the sentence in this matter. If you do wish to appeal, you must file a written notice within 60 days of today. [¶] If you are going to appeal and are unable to pay for an attorney, the Appellate Court will appoint an attorney to r epresent you at no cost to you. [¶] And you will have a right to a copy of the transcript and any necessary r ecords from this court for your appeal. [¶] But what’s most important is that you understand that a written notice must be filed within 60 days. [¶] Do you understand that?

“ Mr. Perry: I do. ” One month later, on April 17, 2015, the parties appeare d for the restitution hearing. Perry , still represented by the Alternate Defender’s Office, objected to the requested restitution but submitted on the records before the court. Base d on the victim claims, and defendants not submitting any other evidence, the court ordered a total of $7,125.81 in restitution.
What is demonstrably lacking in the record is any “ clear indication ” by Perry that he wanted his attorney discharged and substitute counsel appointed. (See People v.
Sanchez (2011) 53 Cal. 4 th 80, 89

– 90 & f n. 3 [ Marsden hearing is required only when “there is ‘at least some clear indication by defendant,’ either personally or through his current counsel, that defendant ‘wants a substitute attorney’ ” and rejecting argument that expressing desire to make post trial motion on basis of ineffective representation is the equivalent of a clear indicati on the defendant wants his attorney relieved and new counsel appointed] ; People v. Barnett (1998) 17 Cal. 4 th 1044, 1112 [rejecting Court of A ppeal suggestion that where the defendant has made a “colorable claim ” of ineffective assistance in post trial motion, new counsel must be provided]. )
While Perry expressed a desire to make a motion to withdraw his plea, he never said anything about want ing Mr. Kuluk removed as counsel. And while Mr. Kuluk9

advised the trial court defendant felt he had been “ineffective” during the time between the two sentencing hearings by “not discussing issues with him further,” neither Kuluk

nor defendant indicated the posited motion , itself, w ould be based on alleged ineffective
assistance of counsel. (See People v. Lee (2002) 95 Cal.App.4 th 772, 780 [“ [ m ] ere grumblings” fall far short of clear indication the defendant wanted substitute counsel].) In any event, the re ference to ineffective assistance was not tantamount to a clear indication defendant wanted his attorney dismissed. We do not agree Perry more clearly asked for his attorney to be discharged than
did the defendants in People v. Eastman (2007) 146 Cal.App.4 th 688, People v. Mendez (2008) 1616 Cal.App.4 th 1362 ( Mendez ) , and People v. Mej í a (2008) 159 Cal.App.4 th

1081 ( Mejía )

— all adopting the ineffective assistance of counsel complaint equals a request for new counsel rationale the Supreme Court expressly reje cted in Sanchez

. ( Sanchez, supra, 53 Cal. 4 th at p. 90 & f n. 3.) There is no question the facts differ in every case. The salient issue, however, is whether comments by defendant or his attorney provide d a clear indication defendant want ed current counsel discharged and new counsel appointed. Nothing Perry or his attorney said here meets that standard.
Nor does People v. Reed (2010) 183 Cal.App.4 th 1137, assist Perry . In Reed , a
combination of the defendant’s “expressed desire to pursue a motion for new trial based on counsel’s incompetence, the fact that defense counsel said, ‘I cannot make it for him,’ and the context of [the defendant’s] prior unsuccessful Marsden motions, made it sufficiently clear that [he] was in fact requesting subs titute counsel to pursue the motion
for new trial

. ” ( Id. at p. 1145

– 1146.) None of these circumstances, let alone a

co nfluence of them, occurred here. Moreover, to the extent the appellate court suggested

a Marsden hearing was triggered merely by the de fendant’s expressed desire to make a new trial motion on the basis of ineffective assistance of counsel, without more (see Reed, supra
, at pp. 1146

– 1147 [citing the subsequently disapproved decisions in Mendez
and Mej í a ]), the case has been effectively dis approved by Sanchez

. ( Sanchez, supra
, 53 Cal.4th at p. 90, fn. 3 [expressly identifying Mendez and Mej í a as incorrectly implying10

a Marsden hearing can be triggered by something less than a “clear indication” the

defendant “ ‘ wants a substitute attorney ’ ” ].) We need not reach the issue of prejudice. (See Marsden, supra, 2 Cal.3d at

p. 126.) But even if we did, we would conclude failure to hold a Marsden hearing to consider whether new counsel should be appointed to file a motion to withdraw
defendant’s plea was not prejudicial beyond a reasonable doubt

. ( See People v. Washington (1994) 27 Cal.App.4 th 940, 944 [ the defendant failed to carry burden of showing a “ Marsden motion would have been granted had it been heard, or that a more
favorable result woul d have been achieved had the motion in fact been granted”].) The trial court left no doubt that any such motion filed after the first sentencing hearing

— when the victim’s mother called defendant by another name (of the individual Perry claimed actually pu lled the trigger) and after which Perry claimed to have had an epiphany as to the merits of a motion to withdraw his plea

— would be denied as both untimely and meritless. 5 Indeed, the court characterized Perry’s request to withdraw his plea as “insubstanti al and incredib le.”

B. Viscaina’s Appeal As stated above, Viscaina’s counsel on appeal has filed a brief that asks this court to conduct an independent review of the record. Viscaina was notified of her right to file a supplement review, but has not done s o

. Section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a c hallenge to a search and seizure ruling, as to which an a ppeal is proper under section 1538.5, subdivision (m); and (2) postplea sentencing issues. ( People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Sin ce defendant did

5 As the trial court stated at the time of taking Perry’s and Viscaina’s no contest pleas to manslaughter, the record, including the preliminary hearing proceedings, supplied ample factual basis for the pleas. Even if Perry did not, as he claims, pull the trigger, there was still an adequate factual basis for the plea as a coparticipant.11

not apply for a certif

icate of probable cause , she is not able to challenge the validity of her plea or any other matter that preceded its entry, except as permitted under the exceptions. ( People v. Cole (2001) 88 Cal.App.4th 850, 867

– 868.) Defendant did not make a suppression motion. Accordingly, our review is limited to postplea sentencing
issues. The record shows defendant was ably represented by counsel at all times. She duly executed felony waiver forms in connection with her pl eas and was fully advised and voir dired by the trial court in advance of pleading no contest. She expressly wai ved time for sentencing and was ultimately sentenced in accordance with the terms of the agreed

- to, global disposition o f her cases. She recei ved total credits of 983 days , and the court properly imposed fin es and fees. After a hearing at which Viscaina made no showing in opposition to the claimed restitution, the court ordered a total of $7,125.81 in

re stitution.

D ISPOSITION The judgment s of conviction are affirmed.12 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Margulies, J.