P. v. Ferguson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD236563
- Trial judge
- Eugenia A. Eyherabide
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Judith L. Haller, O'Rourke
Analysis
The trial court accepted Ferguson's negotiated guilty plea to attempted robbery with a gang enhancement and strike, sentencing him to seven years and eight months after finding a sufficient factual basis. The Court of Appeal affirmed the judgment, finding no error in the plea process or sentencing based on the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sufficiency of the factual basis for the guilty plea“The court found there was a factual basis for the plea and admissions. This was sufficient. (§ 1192.5, 3d par.)” | de novo | correct | agree with court agree with court |
Ineffective assistance of counsel“The record does not demonstrate that Ferguson received ineffective assistance of counsel, that is, that counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced Ferguson. (Strickland v. Washington (1984) 466 U.S. 668.)” | de novo | correct | agree with court agree with court |
Denial of motion to withdraw guilty plea“The record does not show any coercion, nondisclosure, false statements or impropriety in the plea bargaining process, or any grounds for a motion to withdraw the guilty plea.” | abuse of discretion | correct | agree with court agree with court |
Sufficiency of evidence for gang enhancement“substantial evidence does not support the finding underlying the gang enhancement” | substantial evidence | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must conduct an independent review of the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel must file a brief identifying any arguable issues or explaining why none exist.
- relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance of counsel requires showing deficient performance and prejudice.
- relied: People v. Roberts (1963) 213 Cal.App.2d 387 — Appellate courts cannot review matters outside the scope of the record.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant is entitled to a hearing on a request for new counsel if a conflict of interest is alleged.
The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders framework to review the record for error and cites the appropriate standard (Strickland) for ineffective assistance claims. It accurately notes that the record supports the factual basis for the plea and contains no evidence of coercion or procedural impropriety.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Ferguson's negotiated guilty plea to attempted robbery with a gang enhancement and a strike admission, found a factual basis for the plea after Ferguson confirmed the recited facts, and imposed the stipulated seven-year eight-month term after retained counsel reported no good-faith basis to move to withdraw the plea. On a Wende/Anders appeal with a certificate of probable cause, the Court of Appeal reviewed the record, addressed Ferguson's supplemental contentions (factual basis, coercion, ineffective assistance, gang enhancement), found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding of an adequate factual basis for the guilty plea and admissions under Penal Code section 1192.5“This was sufficient. (§ 1192.5, 3d par.)” | unclear | correct | agree with court The court recited the elements-based facts, the defendant personally confirmed them, and the court made an express finding; that satisfies section 1192.5 as construed in People v. Holmes, though the opinion does not cite Holmes or state the abuse-of-discretion standard. |
Acceptance of the plea as voluntary; rejection of claims of coercion, nondisclosure, and false statements in plea bargaining, and of any ground to withdraw the plea“coercion, nondisclosure, false statements or impropriety in the plea bargaining process, or” | unclear | correct | agree with court Ferguson's claims of threats and false promises depend on matters outside the appellate record, and the court properly declined to consider them on direct appeal, citing People v. Roberts; the record itself reflects a stipulated sentence and a defendant who confirmed the factual basis. |
Claims of ineffective assistance of trial counsel (failure to investigate, advise, move to withdraw the plea, or seek coram nobis relief)“counsel's acts or omissions prejudiced Ferguson” | unclear | correct | agree with court Under Strickland the defendant must show deficient performance and prejudice from the record; retained counsel stated on the record he found no good-faith basis to withdraw the plea, and nothing in the record shows otherwise, so the claim fails on direct appeal. |
Imposition of the stipulated seven-year eight-month sentence, declining to dismiss the strike, and $1,500 restitution fine (Anders issues 7 and 8)“issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.” | abuse of discretion | correct | agree with court The sentence was stipulated as part of the negotiated plea, which generally forecloses a challenge to the court's refusal to strike the prior, and a $1,500 fine is within the statutory range; the court did not discuss these points separately but the result is correct. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous must file a brief referring to anything in the record that might arguably support the appeal.
- relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance requires showing counsel's performance fell below an objective standard of reasonableness and that the deficiency prejudiced the defendant.
- relied: People v. Roberts (1963) 213 Cal.App.2d 387 — An appellate court cannot consider matters outside the appellate record.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — When a defendant seeks substitution of appointed counsel, the court must allow the defendant to state the reasons for dissatisfaction.
- missed: People v. Holmes (2004) 32 Cal.4th 432 — A trial court satisfies section 1192.5 by inquiring of the defendant about the factual basis or by accepting a stipulation to a document describing the facts; the inquiry is reviewed for abuse of discretion.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal the Court of Appeal must address in its opinion the contentions raised in the defendant's supplemental brief and explain why they fail.
The appellate opinion: sound with gaps — The opinion correctly applies Wende/Anders review, properly confines itself to the record, and reaches the right result on the factual-basis and ineffective-assistance claims. It does not cite Holmes for the factual-basis standard, does not separately explain why the stipulated sentence forecloses the strike and fine challenges, and disposes of the supplemental-brief contentions in a single conclusory paragraph without citing Kelly.
Opinion
Filed 7/31/13 P. v. Ferguson CA4/1 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 ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063189
Plaintiff and Respondent, v. (Super. Ct. No. SCD236563)
TAMARI JAMIL FERGUSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.
Eyherabide, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Tamari Jamil Ferguson entered a negotiated guilty plea to attempted robbery (Pen.
Code, §§ 664, 211)1 and admitted a gang enhancement (§ 186.22, subd. (b)(1)) and a 1 All further statutory references are to the Penal Code. strike (§ 667, subds. (b)-(i)). The court granted Ferguson two continuances so he could retain counsel to file a motion to withdraw the guilty plea. At the sentencing hearing, Ferguson's retained counsel stated he could not find "a good-faith legal basis for withdrawing [the] plea." The court sentenced Ferguson to a stipulated seven-year eight- month prison term: twice the 16-month lower term for attempted robbery and five years for the gang enhancement. Ferguson appeals and has obtained a certificate of probable cause (§ 1237.5). We affirm.
BACKGROUND
Ferguson unlawfully attempted to take, with force, property from the person of another for the benefit of a criminal street gang. Ferguson had previously suffered a true finding in juvenile court of a strike offense.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel mentions as possible, but not arguable, issues: (1) whether the judgment should be vacated because there was no determination that there was an adequate factual basis for the plea, or because the record does not reflect a factual basis; (2) whether Ferguson received ineffective assistance of counsel due to a failure to investigate the factual basis or a failure to advise Ferguson before he entered his plea; (3) whether the plea was coerced; (4) whether the failure to file a motion to withdraw the plea constituted 2 ineffective assistance of counsel; (5) whether the court abused its discretion by not holding a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) or asking Ferguson if he agreed with his counsel's refusal to move to withdraw the plea; (6) whether Ferguson received ineffective assistance of counsel because trial counsel failed to file a petition for writ of coram nobis after sentencing in light of Ferguson's express desire to withdraw his plea; (7) whether the court abused its discretion by refusing to modify the sentence by dismissing the strike; and (8) whether the court abused its discretion by ordering a $1,500 restitution fine.
We granted Ferguson permission to file a brief on his own behalf. He has responded with the following contentions: there was an inadequate factual basis for the plea; Ferguson received ineffective assistance of counsel; counsel forced him to sign the plea agreement with the threat of a sentence of 11 to 23 years failed to disclose all evidence; counsel and the court falsely stated that all three defendants would receive gang enhancements, but Ferguson was the only one who did; the court erred by denying Ferguson's motion to withdraw the guilty plea; and substantial evidence does not support the finding underlying the gang enhancement.
The court recited the facts set forth above in the background section of this opinion as the factual basis. The court then asked, "Is that what you did in this case, sir?"
Ferguson said "Yes." The court found there was a factual basis for the plea and admissions. This was sufficient. (§ 1192.5, 3d par.) The record does not show any coercion, nondisclosure, false statements or impropriety in the plea bargaining process, or any grounds for a motion to withdraw the guilty plea. On appeal we cannot review 3 matters outside the scope of the record. (People v. Roberts (1963) 213 Cal.App.2d 387, 394.) The record does not demonstrate that Ferguson received ineffective assistance of counsel, that is, that counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced Ferguson. (Strickland v. Washington (1984) 466 U.S. 668.)
A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.
Ferguson has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26
- People v. Roberts Crim. 1746 · 1963-02-26