Filed 2/23/15 P. v. Bartram CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067705
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12901349)
                   v.

JOHN CHARLES BARTRAM,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez,
Judge (retired judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.); Jonathan M. Skiles and Edward Sarkisian, Jr., Judges.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.




*        Before Cornell, Acting P.J., Poochigian, J. and Franson, J.
                                     INTRODUCTION
       Appellant John Charles Bartram pled no contest to possession of a controlled
substance and admitted two prior strike convictions and five prior prison terms, in
exchange for an agreed maximum sentence of 11 years. In accordance with the plea,
Bartram was sentenced to a total of nine years in prison. The trial court denied Bartram’s
request for a certificate of probable cause. On January 10, 2014, appellate counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                       FACTUAL AND PROCEDURAL SUMMARY
       On February 27, 2012, charges were filed against Bartram alleging he was found
in possession of a controlled substance on February 23, 2012, in violation of Health and
Safety Code section 11377, subdivision (a). It also was alleged that he had suffered two
prior convictions for serious or violent felonies pursuant to Penal Code section 667,
subdivisions (b) through (i),1 and had served five prior prison terms pursuant to section
667.5, subdivision (b). On February 29, 2012, Bartram waived formal arraignment and
pled not guilty.
       On April 27, 2012, Bartram signed a felony advisement, waiver of rights, and plea
form. On the form, Bartram agreed to a no contest plea to the possessory offense and
admitted the two prior strikes and the five prior prison terms, apparently in exchange for
an indicated sentence. The plea form stated: “Court indicates Romero[2] strikes + 3 pp =
5 yr. lid.” On that same date, Bartram withdrew his not guilty plea to the offense, entered
a plea of no contest, and admitted the priors, in accordance with the plea agreement.
       On June 13, 2012, the Hon. Ralph Nunez stated he would not sentence Bartram in
accordance with the indicated sentence set forth in the plea form. Bartram withdrew his
no contest plea and his admissions.


       1All   further statutory references are to the Penal Code unless otherwise stated.
       2People     v. Superior Court (Romero) (1996) 13 Cal.4th 497.


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       On July 20, 2012, Bartram entered into a second plea agreement. Bartram agreed
to enter a plea of no contest to the offense and admit the two prior strikes and five prior
prison terms. In exchange, the trial court, the Hon. Jonathan M. Skiles, indicated it
would “[Romero] both strikes” and impose an eight-year stayed term with no initial
prison time. Bartram would be placed in the Jericho Project for two years and waive all
time credits that he accumulated while in the Jericho Project.
       Judge Skiles thoroughly explained the terms of the indicated sentence and the
consequences of entering a no contest plea and admitting the priors. The trial court then
asked Bartram if he had had sufficient time to go over the agreement with counsel, to
which Bartram replied, “Yes.” Bartram also was asked if he understood the agreement,
and he replied, “Yes.” The trial court then proceeded to accept a waiver of constitutional
rights from Bartram; the parties stipulated to a factual basis for the plea; and the trial
court proceeded to accept a no contest plea and admissions. The trial court found that
Bartram had knowingly and intelligently waived his constitutional rights and freely and
voluntarily entered into the plea agreement.
       On July 27, 2012, Bartram told the trial court, “I would like to say I’m going to
take this deal, but I’m taking it under duress.” The trial court responded, “you are not
going to be taking it because I won’t accept anything under duress.” The trial court asked
Bartram if he wanted to withdraw the plea; Bartram responded, “No. No, I take the
plea.” The trial court replied, “As a matter of fact, based on what I heard that this was …
not freely and voluntarily entered into, that it was done under duress, the Court’s
indicated is no longer on the table. The plea is set aside.”
       Defense counsel told the trial court that Bartram “might have used the wrong
word.” The trial court replied, “Mr. Bartram, the only thing I can say is there’s a phrase
that goes something like be careful what you ask for, you just might get it. In this case, I
do not want even a hint that something is being done under duress or in violation of any
of your constitutional rights. The Court’s indicated is no longer on the table.” Bartram

                                               3.
asked, “May, I speak?” The trial court replied, “Actually, no.” The trial court set aside
the plea agreement.
        On February 22, 2013, Bartram orally made a Marsden3 motion, which the trial
court, the Hon. Hilary A. Chittick, granted. The public defender was relieved as counsel
for Bartram and new counsel was appointed. Multiple settlement conferences were held
and continued. Eventually, a trial date of May 20, 2013, was set. The trial date was
rescheduled to May 21, 2013.
        The trial was assigned to the Hon. Edward Sarkisian, Jr. Both parties submitted
their lists of proposed jury instructions. On May 21, 2013, both counsel stated they were
ready to proceed with the trial. The defense filed motions in limine.
        On the second day of trial, May 22, 2013, Bartram again entered into a plea
agreement. This agreement provided for Bartram to enter a no contest plea to the
possessory offense and admit the two prior strike offenses and the five prison priors in
exchange for a maximum sentence of 11 years. Bartram and his attorney signed the plea
form.
        Judge Sarkisian carefully reviewed the terms of the plea with Bartram, advised
Bartram of his constitutional rights, and accepted a waiver of those rights. The parties
stipulated to a factual basis for the plea and that the police reports contained a factual
basis supporting the plea. Bartram indicated he understood the consequences of his plea,
and the trial court found Bartram made a knowing and intelligent waiver of his rights.
The trial court accepted Bartram’s no contest plea and admissions.
        The trial court then stated, “I just want you to understand that in light of your plea
today, which we’ve gone over very carefully, I’m not going to favorably entertain --
entertain any motion to withdraw your plea in this case. Do you understand that?”
Bartram replied, “Yes, I do.” The trial court then indicated it would sign the plea form,

        3People   v. Marsden (1970) 2 Cal.3d 118.


                                              4.
indicating (1) acceptance by the court of the plea and the factual basis for the plea;
(2) Bartram’s constitutional rights were knowingly and intelligently waived; and (3) the
plea agreement was freely and voluntarily entered into by Bartram.
       At the July 1, 2013, sentencing hearing, Bartram asked the trial court to exercise
its discretion pursuant to Romero to strike the prior convictions, grant probation, refer
him to an inpatient treatment program, and impose a stayed sentence, similar to the
indicated sentence stated by Judge Skiles. The People opposed the grant of probation and
a treatment program and asked the trial court to impose at least a six- or seven-year term
in prison.
       The trial court noted that the probation report recommended the aggravated term.
The trial court instead imposed the midterm of two years, doubled to four years, plus a
consecutive one-year term for each of the five prison priors. The total term imposed was
nine years, with credit of 989 days toward the term of commitment.
       Bartram filed a notice of appeal and requested a certificate of probable cause. In
his request for a certificate of probable cause, Bartram challenged the validity of his plea,
the sentence imposed, alleged ineffective assistance of counsel, illegal inducement to
plead guilty, and judicial bias by Judge Sarkisian. The certificate of probable cause was
denied.
                                      DISCUSSION
       Appellate counsel filed a motion with this court to augment the record with the
reporter’s transcript of the hearing on July 27, 2012, where Judge Skiles withdrew the
indicated sentence and vacated the plea agreement. By order dated November 5, 2013,
this court granted the request.
       On January 10, 2014, appellate counsel filed a brief asking this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) In a letter received by this court
on February 14, 2014, Bartram raised the same issues he had set forth in his request for a
certificate of probable cause.

                                             5.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                      DISPOSITION
       The judgment is affirmed without prejudice to any rights Bartram may have
pursuant to section 1170.18 to petition the trial court for a recall of sentence and
resentencing in accordance with the Safe Neighborhoods and Schools Act.




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