People v. Ho CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD247403
- Trial judge
- Eugenia A. Eyherabide
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Alex C. McDonald, McINTYRE
Analysis
The trial court accepted a guilty plea from the defendant for vehicle theft, admitted a prior strike, and sentenced him to four years in state prison after denying his requests to represent himself, change counsel, and continue sentencing. The Court of Appeal affirmed the judgment after an independent review of the record under People v. Wende found no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of defendant's request to represent himself (Faretta motion)“The trial court denied Ho's request to represent himself.” | unclear | not reached | agree with court The appellate court conducted an independent review of the record pursuant to People v. Wende and concluded that no reasonably arguable appellate issues were disclosed, thereby affirming the judgment without addressing the specific merits of the Faretta denial. |
Denial of defendant's request for a change of attorney (Marsden motion)“The court held a Marsden hearing, and denied Ho's request for appointment of a different attorney.” | unclear | not reached | agree with court The court identified this as a potential issue in the Anders brief but determined through its independent review that it did not constitute a reasonably arguable appellate issue warranting reversal. |
Denial of defendant's request for a continuance of sentencing“The trial court denied the request for a continuance and sentenced Ho in accordance with the plea agreement.” | unclear | not reached | agree with court The appellate court reviewed the record and found no reasonably arguable error in the trial court's exercise of discretion to deny the continuance and proceed with sentencing. |
Acceptance of guilty plea and admission of prior strike“Ho thereafter pled guilty to count 1, felony vehicle theft, and admitted having suffered a prior strike conviction.” | unclear | not reached | agree with court The court noted that the defendant was informed of the consequences of the strike, including the 80 percent sentence enhancement, and found no reasonably arguable issue regarding the factual basis or voluntariness of the plea. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying potential issues and invites the court to independently review the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying potentially meritorious issues and allowing the court to review the record.
- relied: Faretta v. California (1975) 422 U.S. 806 — Establishes the constitutional right of a criminal defendant to represent themselves if the waiver is knowing and intelligent.
- relied: People v. Lopez (1977) 71 Cal.App.3d 568 — Provides the standard for determining whether a defendant's waiver of the right to counsel is knowing and intelligent.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — Establishes the standard for determining whether a defendant is entitled to a change of counsel based on a breakdown in the attorney-client relationship.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for error. However, it provides no substantive legal analysis for the specific issues raised by counsel, relying solely on the conclusion that no reasonably arguable issues exist.
How this analysis was made · dispute it
unusual dispositionHo pled guilty to unlawfully taking and driving a vehicle and admitted a prior strike after the trial court denied his first-day-of-trial Faretta request and a Marsden motion, and the court later denied a continuance of sentencing and imposed the stipulated four-year prison term. On appeal, appointed counsel filed a Wende brief; the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea and strike admission on the stated factual basis“As factual support for his plea, Ho admitted that he "drove a car without the permission of the owner with the intent to deprive [the] owner of said vehicle" and that he "had a prior strike."” | unclear | correct | agree with court Ho's own admission of each element of Vehicle Code section 10851 and of the prior strike supplies a factual basis for a negotiated plea; the opinion also notes the plea was taken in conformity with a stipulated agreement. Nothing in the recited record suggests a defect, and a challenge to the plea's validity would in any event require a certificate of probable cause under Penal Code section 1237.5. |
Denial of Faretta self-representation motion made on the first day of trial“The trial court denied Ho's request to represent himself.” | unclear | correct | unsure A Faretta request made on the day of trial is untimely and addressed to the trial court's discretion rather than being an absolute right, and a subsequent guilty plea generally forecloses review of pre-plea rulings absent a certificate of probable cause. The opinion does not describe the trial court's reasons or whether a certificate was obtained, so the result is likely right but cannot be fully verified from the opinion. |
Denial of pre-plea Marsden motion for substitute counsel“The court held a Marsden hearing, and denied Ho's request for appointment of a different attorney.” | unclear | correct | unsure The trial court held the required hearing, which is the core procedural protection Marsden demands; denial is reviewed for abuse of discretion and the opinion recites no facts suggesting a breakdown in the attorney-client relationship. The guilty plea also likely waives this pre-plea claim without a certificate of probable cause, though the opinion does not say whether one issued. |
Denial of request to continue sentencing“The trial court denied the request for a continuance and sentenced Ho in accordance with the plea agreement.” | unclear | correct | agree with court Continuances in criminal cases require good cause under Penal Code section 1050 and the ruling is discretionary; because the sentence was stipulated, a continuance could not have changed the outcome and no prejudice is apparent. The opinion gives no reason for the request, so the conclusion is reasonable on this record. |
Adequacy of advisement that the strike reduces conduct credits to 80 percent“Ho was informed, both orally and in writing, that as a result of his prior strike conviction, he would be required to serve 80 percent of the four-year sentence.” | unclear | correct | agree with court The opinion affirmatively recites that Ho received the credit-limitation advisement both orally and in writing, which directly answers the possible issue counsel identified. There is no basis in the opinion to question that finding. |
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 before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court but must identify anything in the record that might arguably support the appeal.
- relied: Faretta v. California (1975) 422 U.S. 806 — A criminal defendant has a Sixth Amendment right to represent himself when he knowingly and intelligently waives counsel.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — When a defendant seeks substitute appointed counsel, the trial court must hear and consider the defendant's reasons before ruling.
- relied: People v. Lopez (1977) 71 Cal.App.3d 568 — Sets out the advisements and inquiries a trial court should make before accepting a defendant's waiver of counsel for self-representation.
The appellate opinion: sound with gaps — The opinion follows the required Wende/Anders procedure, lists the possible issues counsel identified, confirms the defendant was invited to file a supplemental brief, and recites record facts that answer the credit-advisement and factual-basis questions. It does not, however, resolve the certificate-of-probable-cause questions counsel raised or state the standards governing the Faretta, Marsden, and continuance rulings, leaving those conclusions unexplained though almost certainly correct.
Opinion
Filed 6/5/14 P. v. Ho 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, D064618
Plaintiff and Respondent, v. (Super. Ct. No. SCD247403)
VU LINH HO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.
Eyherabide, Judge. Affirmed.
Patricia Mary Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. I.
INTRODUCTION
Vu Linh Ho pled guilty to one count of unlawfully taking and driving a vehicle (Veh. Code, § 10851) and admitted having suffered a prior strike allegation. In conformance with the stipulated plea agreement, the trial court sentenced Ho to a term of four years in state prison.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2013, the People filed a complaint against Ho alleging one count of unlawfully taking and driving a vehicle (Veh. Code, § 10851) and one count of buying/concealing/withholding and/or aiding in concealing/selling/withholding a motor vehicle, in violation of Penal Code1 section 496, subdivision (d). The People further alleged that Ho had suffered six prior felony convictions (§ 1203, subd. (e)(4)), four 1 Further statutory references are to the Penal Code unless otherwise specified.
2 prison priors (§§ 667.5, subd. (b), 668), and one strike prior (§§ 667, subd.(b)-(i), 668 & 1170.12).
The case was set for a jury trial. On the first day of trial, just prior to the commencement of voir dire, Ho waived his right to a jury trial on the allegations of his prior convictions and prison sentences. Ho sought to represent himself at trial, pursuant the authority of Faretta v. California (1975) 422 U.S. 806 (Faretta), and presented the court with a Lopez2 waiver. The trial court denied Ho's request to represent himself. Ho then requested a Marsden3 hearing, seeking a change of attorney. The court held a Marsden hearing, and denied Ho's request for appointment of a different attorney.
Voir dire commenced. After a lunch break, Ho indicated that he had decided to enter a change of plea. The prospective jurors were excused.
Ho thereafter pled guilty to count 1, felony vehicle theft, and admitted having suffered a prior strike conviction. In exchange, the parties agreed to a sentence of four years in state prison. Ho was informed, both orally and in writing, that as a result of his prior strike conviction, he would be required to serve 80 percent of the four-year sentence. The court dismissed the remaining count and struck the prison prior and felony prior conviction allegations.
2 People v. Lopez (1977) 71 Cal.App.3d 568, 571.
3 People v. Marsden (1970) 2 Cal.3d 118, 124. 3 As factual support for his plea, Ho admitted that he "drove a car without the permission of the owner with the intent to deprive [the] owner of said vehicle" and that he "had a prior strike."
On the day of his scheduled sentencing hearing, Ho requested a continuance of sentencing. The trial court denied the request for a continuance and sentenced Ho in accordance with the plea agreement.
Ho filed a timely notice of appeal.
III.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but not arguable, issues:
(1) "Is there [a] sufficient factual basis to support the vehicle theft and the finding of a prior strike? Is this issue appealable without a certificate of probable cause?"
(2) "Did the trial court err when it denied appellant's Faretta motion to represent himself on the first day of trial? . . . Is this issue appealable without a certificate of probable cause?" (Fn. omitted.)
(3) "Did the trial court err when it denied appellant's pre-plea Marsden motion? . . . Is this issue appealable without a certificate of probable cause?"
4 (4) "Did the trial court err when it denied appellant's request for a continuance of sentencing?"
(5) "Was appellant expressly informed that by pleading to a strike, he would get reduced credits?"
After this court received counsel's brief, we provided Ho with the opportunity to file a supplemental brief. Ho did not file a supplemental brief.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. Ho has been adequately represented by counsel on this appeal.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Lopez Crim. 9186 · 1977-07-08
- People v. Marsden Crim. 14119 · 1970-02-26