Filed 6/29/16 P. v. Russell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D068993
Plaintiff and Respondent,
v. (Super. Ct. No. SCS278906)
KARL JOSEPH RUSSELL, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard III and Garry G. Haehnle, Judges. Affirmed.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent. INTRODUCTION
Karl Joseph Russell, Jr., was charged with one count of battery on a nonprisoner
by a prisoner. (Pen. Code, § 4501.5; count 1.)1 He pleaded guilty to attempting to resist
an officer in the performance of his lawful duty (§§ 664, 69; count 2 amended by
interlineation) with a stipulated sentence of 16 months in exchange for dismissal of count
1. The court sentenced Russell to 16 months to be served consecutive to the sentence he
was serving for another conviction (People v. Russell (Super. Ct. San Diego County,
2008, No. SCN217314).) The court also imposed fines and assessments. In a letter to the
court, Russell stated he wanted to "appeal some type of error in my case." This was
deemed a notice of appeal. The court did not issue a certificate of probable cause.
(§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
Russell's appointed appellate counsel filed a brief requesting we independently
review the record for error. (See People v. Wende (1979) 25 Cal.3d 436, 441-442.)
Having done so and having identified no reasonably arguable appellate issues, we affirm
the judgment.
BACKGROUND2
A
Richard Lopez, a correctional officer at the Richard J. Donovan Correctional
Facility (RJD), observed another correctional officer tell inmate Russell he was out of
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The factual background is taken from the preliminary hearing because Russell pleaded guilty. 2 bounds and asked Russell to leave the building. When Russell ignored the direction,
Officer Lopez gave Russell a direct order to go back to his assigned housing unit.
Russell walked out of the building, but then turned around and said, "Lopez, your days
are numbered."
After waiting for other inmates to leave the building, Officer Lopez walked out of
the building to verbally counsel Russell. Lopez saw Russell enter a building next door
and followed him to tell him it was not acceptable to threaten a peace officer.
Lopez saw Russell going up some stairs and asked him to return. Russell said no,
he was going home. After Lopez ordered him to return, Russell eventually did so. As
Russell approached, Lopez asked him to place the items Russell was carrying on a table.
Lopez told Russell he intended to restrain him for safety so he could counsel him about
the threat. Russell said he was not going to listen to Lopez. Russell swore and said
Lopez was not going to touch him.
Lopez again ordered Russell to put down the items in his hand. Russell threw the
items on the floor, raised his hands in the air and walked toward Officer Lopez in an
aggressive manner. Russell swore again and waived clenched fists in the air.
Russell appeared angry as he walked quickly toward Lopez. Russell thrust his
chest toward Lopez, as though to chest bump him. Lopez grabbed Russell's shirt and
tried to place Russell on the ground. As they were going down, Russell punched Lopez
on the elbow and again in the face.
Once Russell was on the ground, he tried to fight Lopez and other responding
officers. He tried to kick and punch as Lopez and the other officers restrained him. He
3 flung his arms around and twisted his entire body until the officers were able to put him
in handcuffs and take him into custody.
B
After considering the evidence presented at the preliminary hearing, the court
found probable cause to believe the offense charged in count 1 had been committed and
that Russell was guilty thereof. The court observed a violation of section 69 for resisting
an executive officer might be more appropriate, but such a charge was not added at the
time. The court bound Russell over for further proceedings and Russell's attorney
entered a plea of not guilty.
At the conclusion of the hearing, Russell asked to address the court. The court
said he could not do so and advised him not to make matters worse for himself. Russell
stated, "I am not. I am just saying I never got discovery." When the court said he could
deal with his lawyer, Russell said, "I am firing my lawyer." The court said he could not
fire his lawyer because he had not paid for the lawyer. The court told him to keep his
mouth shut. Russell responded, "Thank you."
C
At a subsequent hearing, Russell pleaded guilty to unlawfully attempting to resist
or delay an officer performing legal duties by force (§§ 69, 664) and admitted he had a
prior conviction in 2008 for murder (§187, subd. (a)), which is a violent felony making
him subject to the terms of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Before
accepting the plea, the court confirmed that Russell read, understood, and discussed the
change of plea form with his attorney before he signed the form. With Russell's
4 agreement, the court amended the change of plea form to include the code sections for the
strike enhancement as well as the date of conviction and charge for the strike. Russell
stipulated to a 16-month sentence to be served consecutive to the sentence for which he
was incarcerated. The court confirmed he was not otherwise promised anything or
threatened to execute the change of plea agreement.
After reviewing the form with Russell, the court accepted the plea finding Russell
understood and voluntarily waived his constitutional rights, his plea and admission were
freely and voluntarily made, and he understood the nature of the charges as well as the
consequences of the plea. The court found a factual basis for the plea. The court granted
the prosecution's motion to dismiss the balance of the charges in light of the plea.
Russell addressed the court asking the court to (1) make the sentence concurrent to
the term for which he was serving prison time, (2) restore prison credits and status points,
and (3) make orders regarding his mental and physical healthcare. The court explained
the offer was for a consecutive sentence and the court did not have authority to change
the offer to which Russell agreed. The court also explained the court does not have
authority to address prison credits and status points because these are issues for the
Department of Corrections. The court did order the Department of Corrections to review
Russell's mental and physical conditions to ensure he received proper care. The court
sentenced Russell to 16 months in prison based on the low term of eight months, doubled
for the strike enhancement.
5 Russell's counsel noted for the record that the People considered documentation
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Filed 6/29/16 P. v. Russell 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, D068993
Plaintiff and Respondent,
v. (Super. Ct. No. SCS278906)
KARL JOSEPH RUSSELL, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard III and Garry G. Haehnle, Judges. Affirmed.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent. INTRODUCTION
Karl Joseph Russell, Jr., was charged with one count of battery on a nonprisoner
by a prisoner. (Pen. Code, § 4501.5; count 1.)1 He pleaded guilty to attempting to resist
an officer in the performance of his lawful duty (§§ 664, 69; count 2 amended by
interlineation) with a stipulated sentence of 16 months in exchange for dismissal of count
1. The court sentenced Russell to 16 months to be served consecutive to the sentence he
was serving for another conviction (People v. Russell (Super. Ct. San Diego County,
2008, No. SCN217314).) The court also imposed fines and assessments. In a letter to the
court, Russell stated he wanted to "appeal some type of error in my case." This was
deemed a notice of appeal. The court did not issue a certificate of probable cause.
(§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
Russell's appointed appellate counsel filed a brief requesting we independently
review the record for error. (See People v. Wende (1979) 25 Cal.3d 436, 441-442.)
Having done so and having identified no reasonably arguable appellate issues, we affirm
the judgment.
BACKGROUND2
A
Richard Lopez, a correctional officer at the Richard J. Donovan Correctional
Facility (RJD), observed another correctional officer tell inmate Russell he was out of
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The factual background is taken from the preliminary hearing because Russell pleaded guilty. 2 bounds and asked Russell to leave the building. When Russell ignored the direction,
Officer Lopez gave Russell a direct order to go back to his assigned housing unit.
Russell walked out of the building, but then turned around and said, "Lopez, your days
are numbered."
After waiting for other inmates to leave the building, Officer Lopez walked out of
the building to verbally counsel Russell. Lopez saw Russell enter a building next door
and followed him to tell him it was not acceptable to threaten a peace officer.
Lopez saw Russell going up some stairs and asked him to return. Russell said no,
he was going home. After Lopez ordered him to return, Russell eventually did so. As
Russell approached, Lopez asked him to place the items Russell was carrying on a table.
Lopez told Russell he intended to restrain him for safety so he could counsel him about
the threat. Russell said he was not going to listen to Lopez. Russell swore and said
Lopez was not going to touch him.
Lopez again ordered Russell to put down the items in his hand. Russell threw the
items on the floor, raised his hands in the air and walked toward Officer Lopez in an
aggressive manner. Russell swore again and waived clenched fists in the air.
Russell appeared angry as he walked quickly toward Lopez. Russell thrust his
chest toward Lopez, as though to chest bump him. Lopez grabbed Russell's shirt and
tried to place Russell on the ground. As they were going down, Russell punched Lopez
on the elbow and again in the face.
Once Russell was on the ground, he tried to fight Lopez and other responding
officers. He tried to kick and punch as Lopez and the other officers restrained him. He
3 flung his arms around and twisted his entire body until the officers were able to put him
in handcuffs and take him into custody.
B
After considering the evidence presented at the preliminary hearing, the court
found probable cause to believe the offense charged in count 1 had been committed and
that Russell was guilty thereof. The court observed a violation of section 69 for resisting
an executive officer might be more appropriate, but such a charge was not added at the
time. The court bound Russell over for further proceedings and Russell's attorney
entered a plea of not guilty.
At the conclusion of the hearing, Russell asked to address the court. The court
said he could not do so and advised him not to make matters worse for himself. Russell
stated, "I am not. I am just saying I never got discovery." When the court said he could
deal with his lawyer, Russell said, "I am firing my lawyer." The court said he could not
fire his lawyer because he had not paid for the lawyer. The court told him to keep his
mouth shut. Russell responded, "Thank you."
C
At a subsequent hearing, Russell pleaded guilty to unlawfully attempting to resist
or delay an officer performing legal duties by force (§§ 69, 664) and admitted he had a
prior conviction in 2008 for murder (§187, subd. (a)), which is a violent felony making
him subject to the terms of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Before
accepting the plea, the court confirmed that Russell read, understood, and discussed the
change of plea form with his attorney before he signed the form. With Russell's
4 agreement, the court amended the change of plea form to include the code sections for the
strike enhancement as well as the date of conviction and charge for the strike. Russell
stipulated to a 16-month sentence to be served consecutive to the sentence for which he
was incarcerated. The court confirmed he was not otherwise promised anything or
threatened to execute the change of plea agreement.
After reviewing the form with Russell, the court accepted the plea finding Russell
understood and voluntarily waived his constitutional rights, his plea and admission were
freely and voluntarily made, and he understood the nature of the charges as well as the
consequences of the plea. The court found a factual basis for the plea. The court granted
the prosecution's motion to dismiss the balance of the charges in light of the plea.
Russell addressed the court asking the court to (1) make the sentence concurrent to
the term for which he was serving prison time, (2) restore prison credits and status points,
and (3) make orders regarding his mental and physical healthcare. The court explained
the offer was for a consecutive sentence and the court did not have authority to change
the offer to which Russell agreed. The court also explained the court does not have
authority to address prison credits and status points because these are issues for the
Department of Corrections. The court did order the Department of Corrections to review
Russell's mental and physical conditions to ensure he received proper care. The court
sentenced Russell to 16 months in prison based on the low term of eight months, doubled
for the strike enhancement.
5 Russell's counsel noted for the record that the People considered documentation
regarding Russell's "mental disorder and his behavior resulting from his mental disorder."
The court indicated it understood this is why the offer was made.
DISCUSSION
Russell's appointed appellate counsel filed a brief summarizing the facts and
proceedings below. Counsel presented no argument for reversal and instead requested
we review the record for error as mandated by People v. Wende, supra, 25 Cal.3d at
pp. 441-442.
To aid our review, and consistent with Anders v. California (1967) 386 U.S. 738,
744, counsel identified one possible appellate issue: "Did the trial court abuse its
discretion by failing to hold a hearing in response to Russell's request for new counsel
and was this issue waived by Russell's guilty plea?" A guilty plea waives any claim of
pre-plea errors, including a Marsden3 error in denying a request to replace appointed
counsel because the "error does not go to the legality of the proceedings resulting in the
plea." (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786; see People v. Lovings
(2004) 118 Cal.App.4th 1305, 1312.) There is no indication from the record Russell did
not receive effective assistance of counsel during the plea negotiations. (See Missouri v.
Frye (2012) ___U.S.___ [132 S.Ct. 1399, 1407-1408, 182 L.Ed.2d 379, 390,] ["criminal
defendants require effective counsel during plea negotiations"].)
3 People v. Marsden (1970) 2 Cal.3d 118. 6 We granted Russell permission to file a supplemental brief on his own behalf. He
submitted a letter stating he did not know how to defend himself and requested a new
trial and new appointed counsel. He stated, "I have come to relize that I am just going to
be another victim to abusive guards in prison, I have serious mental problems and while I
was charged for hitting a officer that I didn't hit I am guilty of yelling at him. [¶] … So
please review my case and grant a new trial or not it just don't matter anymore I will
continue to press the issue in a lawsuit against these officers or we can come to a
settlement take off the plea deal that I signed because of saftey of my life while at RJD in
San Diego or you can allow unfair punishment." (Spelling, punctuation and grammatical
errors in original.)
"Generally speaking, under section 1237.5, a defendant may not bring an appeal
from a judgment of conviction entered after a guilty or no contest plea, including an
appeal challenging the validity of the plea, unless he or she has first obtained from the
superior court a certificate of probable cause. [Fn. omitted.]" (People v. Zuniga (2014)
225 Cal.App.4th 1178, 1182, citing People v. Mendez (1999) 19 Cal.4th 1084, 1095.)
We cannot review the validity of the plea in this case because Russell did not obtain a
certificate of probable cause and no exception to the requirement applies. (Ibid.)
As requested by counsel, we reviewed the record for error and did not find any
reasonably arguable appellate issues. Russell has been competently represented by
counsel on this appeal.
DISPOSITION
The judgment is affirmed.
7 McCONNELL, P. J.
WE CONCUR:
AARON, J.
IRION, J.