People v. Gaustad CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF34723
- Trial judge
- Christopher J. Plourd
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell
Analysis
The trial court denied the defendant's motion to withdraw his guilty plea and sentenced him to 32 months in prison pursuant to a plea agreement. The Court of Appeal affirmed the judgment after conducting an independent review of the record under People v. Wende and finding no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to withdraw guilty plea“The court denied the motion to withdraw the guilty plea.” | unclear | not reached | unsure The appellate court did not explicitly state a standard of review for the trial court's denial of the motion to withdraw the plea. Instead, the court conducted an independent review of the entire record pursuant to People v. Wende and Anders v. California, concluding that it had not identified any reasonably arguable issue for reversal on appeal. The court effectively affirmed the trial court's decision by finding no error in the record, without specifically analyzing the legal sufficiency of the trial court's denial under a specific standard of review (such as abuse of discretion). |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error and file a brief identifying any reasonably arguable issues, or stating that no such issues exist.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from a case where no arguable issues exist, requiring a brief identifying potential issues and an independent court review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for cases where no probable cause is found and counsel identifies no arguable issues. However, it is a 'sound with gaps' opinion because it fails to provide any substantive legal analysis or reasoning for why the specific issues raised by counsel (ineffective assistance, discriminatory prosecution, mental health) were not reasonably arguable, relying solely on the court's own independent review conclusion.
How this analysis was made · dispute it
unusual dispositionGaustad, a state prisoner, pleaded guilty to possession of drug equipment in prison (Pen. Code, § 4573.8) with a strike prior for a stipulated 32-month consecutive term, and the trial court denied his later motion to withdraw the plea, which rested on ineffective assistance and discriminatory prosecution claims, then sentenced him per the agreement. On appeal counsel filed a Wende brief, Gaustad filed nothing, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to withdraw guilty plea (grounds: ineffective assistance in recommending plea, failure to raise discriminatory prosecution, failure to raise mental health in sentencing)“The court denied the motion to withdraw the guilty plea.” | unclear | correct | agree with court The opinion applies Wende/Anders independent review rather than a stated standard. The result is sound: the plea was negotiated down from a 2/3/4-year offense to a 16-month lower term doubled, the discriminatory-prosecution theory rested only on another inmate's deal in a separate case, and, critically, Gaustad obtained no certificate of probable cause under section 1237.5, which under People v. Johnson (2009) 47 Cal.4th 668 bars appellate review of a denied motion to withdraw a plea. The court noted the missing certificate but did not expressly tie it to the Anders issues. |
Imposition of sentence in accordance with the plea agreement (16-month lower term doubled for strike, consecutive)“Gaustad was sentenced in accordance with the plea agreement.” | unclear | correct | agree with court The sentence matched the negotiated disposition exactly; a challenge to a stipulated sentence is in substance an attack on the plea requiring a certificate of probable cause (People v. Panizzon), which was not obtained. Nothing in the opinion suggests an unauthorized sentence. |
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 arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- missed: People v. Johnson (2009) 47 Cal.4th 668 — A defendant who appeals the denial of a motion to withdraw a guilty plea must obtain a certificate of probable cause under section 1237.5; without it the claim is not cognizable on appeal.
- missed: People v. Panizzon (1996) 13 Cal.4th 68 — A challenge to a sentence that was an integral part of a negotiated plea is a challenge to the plea itself and requires a certificate of probable cause.
The appellate opinion: sound with gaps — The court correctly performed Wende/Anders review and the affirmance is plainly right, since all three counsel-identified issues attack the plea and Gaustad had no certificate of probable cause. The opinion, however, merely notes the absence of a certificate without explaining that it independently forecloses review of the plea-withdrawal issues under Johnson and Panizzon.
Opinion
Filed 9/23/16 P. v. Gaustad 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, D070193
Plaintiff and Respondent, v. (Super. Ct. No. JCF34723)
RICKY GAUSTAD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Ricky Gaustad, an inmate at the Centinela State Prison, was charged with possession of a controlled substance in a state prison (Pen. Code,1 § 4573.6), an offense punishable by two, three or four years in prison. It was also alleged that Gaustad had a 1 All further statutory references are to the Penal Code unless otherwise specified. strike prior (§ 667, subds. (b)-(i)). Gaustad entered into a plea agreement in which he was allowed to plead guilty to possession of drug equipment (§ 4573.8). That offense was punishable by 16 months, two or three years. The agreement provided that Gaustad would be sentenced to the lower term of 16 months, doubled because of the strike prior to a term of 32 months, consecutive with his current sentence.
Thereafter, the court granted Gaustad's motion to relieve counsel and new counsel was appointed. Gaustad then filed a motion to withdraw his guilty plea essentially on the grounds his counsel was ineffective and the prosecutor engaged in discriminatory prosecution because another inmate in a separate case, for the same type of offense allegedly got a better deal. The court denied the motion to withdraw the guilty plea.
Gaustad was sentenced in accordance with the plea agreement.
Gaustad filed a timely notice of appeal, but did not obtain a certificate of probable cause (§ 1237.5).
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Gaustad the opportunity to file his own brief on appeal but he has not responded.
STATEMENT OF FACTS
On August 16, 2014, Gaustad was in the custody of a state prison in Imperial County. He was subjected to a routine body search which produced a bindle in his sock.
2 The bindle was wrapped in cellophane and contained three individual packages of marijuana weighing 1.3 grams.
DISCUSSION
Although appellate counsel has not identified any reasonably arguable issues for reversal on appeal, counsel has identified several possible issues pursuant to Anders v. California (1967) 386 U.S. 738 (Anders)) to assist this court in our review of the record.
Specifically, counsel has identified the following issues:
1. Whether the motion to withdraw the plea should have been granted because trial counsel was ineffective in recommending the plea agreement;
2. Whether trial counsel was ineffective for failure to raise a claim of discriminatory prosecution based on the plea agreement given to a different inmate in a different case; and 3. Whether the plea should have been set aside because counsel failed to raise issues regarding Gaustad's mental health in assessing the correct sentence.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issue for reversal on appeal. Competent counsel has represented Gaustad on this appeal.
3 DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12