People v. Sekerke CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN327367
- Trial judge
- Sim Von Kalinowski
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- O'Rourke (author), Judith D. McConnell, Patricia D. Benke
Analysis
The trial court denied Sekerke's motions to dismiss for speedy trial violations and to withdraw his guilty plea, subsequently imposing a stipulated six-year prison sentence. The Court of Appeal affirmed the judgment, finding no reasonably arguable grounds for reversal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss for speedy trial violation“his claim of a violation of his right to a speedy trial did not survive his guilty plea (People v. Egbert (1997) 59 Cal.App.4th 503, 513; People v. Hernandez (1992) 6 Cal.App.4th 1355, 1357)” | unclear | error | agree with court The court correctly applied the well-established principle that a guilty plea waives non-jurisdictional defects, including speedy trial claims, unless the plea itself is invalid. The cited authorities support this conclusion. |
Denial of motion to withdraw guilty plea“the plea waived any right to raise questions regarding the sufficiency or the admissibility of the evidence against him (People v. Turner (1985) 171 Cal.App.3d 116, 125)” | unclear | not reached | unsure The court did not explicitly analyze the specific grounds for withdrawing the plea (such as the speedy trial argument) under the applicable standard of review for post-plea motions. Instead, it broadly stated that the plea waived evidence-related challenges and found no error in the independent review. |
Denial of post-plea Marsden motion“found no reasonably arguable grounds to invalidate the guilty plea or otherwise to reverse the judgment” | unclear | not reached | unsure The court listed this as an issue identified by counsel but did not provide specific reasoning or analysis regarding the denial of the Marsden motion in the discussion section, relying instead on the general finding of no error. |
Denial of post-sentencing request for victim restitution hearing“found no reasonably arguable grounds to invalidate the guilty plea or otherwise to reverse the judgment” | unclear | not reached | unsure Similar to the Marsden motion, the court listed this issue but did not provide specific legal analysis or reasoning for affirming the trial court's denial of the restitution hearing request. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying potential issues and the court to independently review the record for error when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation after filing a brief identifying potentially meritorious issues, requiring independent court review.
- relied: People v. Egbert (1997) 59 Cal.App.4th 503 — A guilty plea waives the right to challenge the case on speedy trial grounds.
- relied: People v. Hernandez (1992) 6 Cal.App.4th 1355 — A guilty plea waives the right to challenge the case on speedy trial grounds.
- relied: People v. Turner (1985) 171 Cal.App.3d 116 — A guilty plea waives the right to raise questions regarding the sufficiency or admissibility of evidence.
The appellate opinion: sound with gaps — The opinion is procedurally sound in following Wende/Anders requirements, but it is 'sound with gaps' because it fails to provide specific legal analysis for three of the four issues raised (Marsden motion, restitution hearing, and the specific standard for withdrawing the plea), relying instead on a blanket statement of no error.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court accepted Sekerke's guilty plea to vehicle theft with a prior strike and prior same-offense conviction, denied his pre-plea speedy trial motion to dismiss, his post-plea Marsden motion, his motion to withdraw the plea, and his ex parte request for a restitution hearing, and imposed the stipulated six-year term. On a Wende/Anders appeal with a certificate of probable cause, the Court of Appeal independently reviewed the record, addressed the defendant's supplemental contentions, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss for violation of constitutional and statutory speedy trial rights“we note his claim of a violation of his right to a speedy trial did not survive his guilty plea” | unclear | correct | agree with court A guilty plea admits every element of the offense and forecloses non-jurisdictional pre-plea claims, including statutory and constitutional speedy trial claims; the court properly relied on Egbert and Hernandez for this settled rule, and a certificate of probable cause does not revive such issues. |
Denial of motion to withdraw guilty plea under Penal Code section 1018“At a combined hearing on the motion and sentencing, the trial court denied the motion, imposed the stipulated six-year prison sentence, and ordered Sekerke to pay victim restitution.” | abuse of discretion | correct | agree with court The motion rested on the same speedy trial delay theory, which is not good cause for withdrawal and was waived by the plea; the opinion gives no detail about the plea colloquy, so the conclusion rests on the court's independent record review rather than stated reasoning. |
Denial of post-plea Marsden motion to relieve appointed counsel“The court held a hearing and denied Sekerke's request.” | unclear | correct | agree with court The trial court held the required Marsden hearing; the opinion recites no facts about the hearing, so one can only accept the court's statement that its independent review disclosed no arguable error. |
Denial of ex parte post-sentencing request for a victim restitution hearing“The court subsequently denied Sekerke's ex parte request to hold a hearing on the restitution award.” | unclear | correct | unsure The opinion states no facts about the restitution amount or whether it was contested at sentencing, and provides no analysis; the result is plausible under Wende review but the record described is too thin to independently confirm. |
Defendant's supplemental claims that evidence (pill bottle, prior convictions) was improperly collected or admitted at the preliminary hearing“the plea waived any right to raise questions regarding the sufficiency or the admissibility of the evidence against him” | de novo | correct | agree with court A guilty plea waives challenges to the sufficiency and admissibility of the evidence, including preliminary hearing evidentiary rulings; Turner correctly states that principle. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed 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: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be given a hearing to state the reasons for the request.
- relied: People v. Egbert (1997) 59 Cal.App.4th 503 — A speedy trial claim does not survive a guilty plea.
- relied: People v. Hernandez (1992) 6 Cal.App.4th 1355 — A guilty plea forecloses appellate review of a speedy trial claim.
- relied: People v. Turner (1985) 171 Cal.App.3d 116 — A guilty plea waives any right to raise questions regarding the sufficiency or admissibility of the evidence.
The appellate opinion: sound with gaps — The court performed the Wende/Anders review, addressed the defendant's supplemental contentions as required, and correctly applied the settled rule that a guilty plea waives speedy trial and evidentiary challenges. It did not explain its reasoning on the Marsden, plea withdrawal, or restitution hearing issues, which is typical of Wende opinions but leaves those conclusions unsupported by stated analysis.
Opinion
Filed 9/28/16 P. v. Sekerke 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, D069480
Plaintiff and Respondent, v. (Super. Ct. No. SCN327367)
KEITH SEKERKE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Keith Sekerke was sentenced to prison for a stipulated term of six years after he pleaded guilty to vehicle theft and admitted allegations he had certain prior convictions.
He filed a notice of appeal and obtained a certificate of probable cause to challenge the validity of his guilty plea. (Pen. Code, §§ 1237, subd. (a), 1237.5.) We find no error and affirm.
BACKGROUND
The People filed a felony complaint against Sekerke on January 8, 2014. After a preliminary hearing, multiple amendments, and consolidation of cases, the People filed a fourth amended information on March 16, 2015, charging Sekerke with two counts of vehicle theft with a prior conviction of the same offense (Veh. Code, § 10851, subd. (a);
Pen. Code, § 666.5, subd. (a)), two counts of petty theft with a prior qualifying conviction (Pen. Code, §§ 484, 666), one count of unlawful use of personal identifying information of another (id., § 530.5, subd. (a)), one count of receiving stolen property (id., § 496d), one count of burglary (id., §459), and one count of shoplifting (id., § 459.5). The People also alleged Sekerke had multiple prior convictions that made him ineligible for probation (id., § 1203, subd. (e)(4)), served three prior prison terms (id., § 667.5, subd.
(b)), and had one prior conviction that qualified as a strike under the Three Strikes law (id., § 667, subds. (b)-(i)).
Before the filing of the fourth amended information, there were several hearings in the trial court, including a competency hearing that required a suspension of proceedings (Pen. Code, § 1368), and multiple continuances of the trial date. On February 27, 2015, Sekerke moved to dismiss the case on the ground a continuance of the November 6, 2014 trial date over his objection violated his constitutional and statutory rights to a speedy trial. The trial court denied the motion on March 16, 2015, the same date the fourth amended information was filed.
2 Three days later, Sekerke pleaded guilty to one count of vehicle theft and admitted the allegations he had a prior conviction for the same offense and a prior strike conviction. The People agreed to dismiss the balance of the charges and allegations, and the parties stipulated to a six-year prison term.
After he pleaded guilty, Sekerke asked the trial court to relieve his appointed counsel. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The court held a hearing and denied Sekerke's request. Sekerke next filed a motion to withdraw the guilty plea (Pen. Code, § 1018) and to dismiss all charges, again complaining the undue delay in prosecution of the case violated his constitutional and statutory rights to a speedy trial.
At a combined hearing on the motion and sentencing, the trial court denied the motion, imposed the stipulated six-year prison sentence, and ordered Sekerke to pay victim restitution. The court subsequently denied Sekerke's ex parte request to hold a hearing on the restitution award.
DISCUSSION
Sekerke's appellate counsel has filed a brief, pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth a statement of the case, urging no grounds for reversal of the judgment, and asking this court independently to review the record for error. Pursuant to Anders, counsel identified the following issues to assist the court in its search for error:
(1) Whether the trial court erred in denying Sekerke's motion to dismiss the case due to a violation of his right to speedy trial;
3 (2) Whether the trial court abused its discretion in denying Sekerke's motion to withdraw his guilty plea;
(3) Whether the trial court erred in denying Sekerke's post-plea Marsden motion;
and (4) Whether the trial court erred by not granting Sekerke's post-sentencing request for a victim restitution hearing.
In the opening brief, counsel also briefly discussed the general legal principles applicable to those issues, including legal authorities showing they had no merit.
After receiving the opening brief from appellate counsel, we informed Sekerke he could file a supplemental brief. He filed two separate letter briefs but advanced the same contentions in both. Sekerke claimed his right to a speedy trial was violated; a pill bottle with his name on it allegedly found in the stolen vehicle was not legally collected and was erroneously introduced as evidence at the preliminary hearing; and the trial court erred by permitting the prosecutor to use evidence of prior convictions against him even though he never took the stand. Sekerke cited no legal authority in support of any of his contentions.
We have reviewed the entire record consistent with the requirements of Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738; considered the issues listed by appellate counsel as well as those raised by Sekerke; and found no reasonably arguable grounds to invalidate the guilty plea or otherwise to reverse the judgment. In brief response to the issues raised by Sekerke, we note his claim of a violation of his right to a speedy trial did not survive his guilty plea (People v. Egbert (1997) 59 Cal.App.4th 503, 4 513; People v. Hernandez (1992) 6 Cal.App.4th 1355, 1357), and the plea waived any right to raise questions regarding the sufficiency or the admissibility of the evidence against him (People v. Turner (1985) 171 Cal.App.3d 116, 125). We further note Sekerke has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Cites, in this corpus
- People v. Egbert Docket Nos. D028399, D028400 · 1997-11-21
- People v. Hernandez E009831 · 1992-05-28
- People v. Turner Crim. 12781 · 1985-05-30
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26