Filed 12/28/15 P. v. Bess 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F069507
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F14903146)
                   v.

HENRY MARKEESE BESS,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. John J.
Gallagher, Judge.
         Robert F. Kane, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Detjen, J. and Peña, J.
       Henry Markeese Bess pled guilty to assault with a firearm and admitted numerous
enhancements after agreeing to a plea bargain that resulted in a stipulated sentence of
nine years in prison. Appellate counsel filed a brief stating he reviewed the entire
appellate record and requests this court independently review the record pursuant to
People v. Wende (1979) 25 Cal.3d 436. We order the appeal dismissed because Bess
failed to obtain a certificate of probable cause from the trial court.
                     FACTUAL AND PROCEDURAL SUMMARY
       The original complaint was filed on April 7, 2014, and contained three causes of
action. The first amended complaint was filed on April 21, 2014, and contained the same
three causes of action arising out of an incident that occurred on April 4, 2014,
(1) attempted murder (Pen. Code, §§ 187, subd. (a), 664);1 (2) assault with a firearm
(§ 245, subd. (a)(2)); and (3) possession of a firearm by a person previously convicted of
a felony (§ 29800, subd. (a)(1)). The complaint also alleged Bess personally used a
firearm within the meaning of section 12022.5, subdivision (a) (counts 1 & 2), and had
four prior convictions that resulted in prison sentences within the meaning of section
667.5, subdivision (b).
       The first amended complaint was filed on Monday, April 21, 2014. Filing of the
first amended complaint (which added the firearm enhancement to count 2) apparently
occurred as the result of plea negotiations that occurred on the preceding Friday,
April 18, 2014. The parties had apparently reached agreement that once the first
amended complaint was filed, Bess would plead no contest to count 2, and admit the
charged enhancements. In exchange, the People agreed to dismiss counts 1 and 3. The
parties stipulated to a nine year prison term. While arraigning Bess on the first amended
complaint defense counsel recited the agreement. The prosecutor agreed, and the plea



1      All statutory references are to the Penal Code.


                                              2.
agreement was entered into, including an agreement that Bess would be immediately
sentenced.
       Bess executed a “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND
PLEA FORM” which confirmed the terms of the agreement, and advised Bess of his
constitutional rights and the consequences of his plea.2 The trial court confirmed (1)
Bess wanted to accept the plea; (2) Bess read and reviewed the plea form; (3) Bess signed
the form; (4) Bess wanted to give up his constitutional rights; and (5) Bess understood the
terms of the plea agreement. The trial court accepted Bess’s plea and sentenced him to
the agreed upon term.
                                       DISCUSSION
       On January 13, 2015, we sent to Bess a letter inviting him to submit any issues he
thought we should address. Bess responded to our invitation by a letter dated January 19,
2015. Bess asserted he was factually innocent and defense counsel was ineffective
because he permitted Bess to enter a plea even though he was innocent.3 Defense
counsel allegedly discouraged Bess from defending the case and encouraged him to
accept the plea agreement.
       We reject Bess’s arguments for two reasons. First, Bess did not petition for, and
consequently did not obtain, a certificate of probable cause from the trial court.
Generally, section 1237.5 precludes an appeal from the judgment entered after a guilty
plea unless the defendant applies for, and the trial court grants, a certificate of probable
cause. Without a certificate of probable cause the issues raised by the defendant are not
reviewable. (People v. Sem (2014) 229 Cal.App.4th 1176, 1187.)


2      This form was actually executed by Bess on Friday, April 18, 2014.
3      The record does not provide the facts of the alleged crime. In his brief, appellate
counsel explains Bess assaulted the victim “by personally using a semi-automatic
firearm.” He further states, “when [Bess] and the victim were struggling, the gun
discharged injuring [Bess].”


                                              3.
       There are two exceptions to this general rule. A defendant does not need a
certificate of probable cause when the appeal addresses postplea matters not challenging
the plea’s validity, or when the issue is the lawfulness of a search or seizure which was
first contested in the trial court before the defendant entered a plea. (People v. Mendez
(1999) 19 Cal.4th 1084, 1096; Cal. Rules of Court, rule 8.304(b)(4).)
       A court of appeal “generally may not proceed to the merits of the appeal, but must
order dismissal thereof, unless the defendant has filed a statement of certificate grounds
as an intended notice of appeal, and has obtained a certificate of probable cause, in full
compliance therewith.” (People v. Mendez, supra, 19 Cal.4th at p. 1099.) Because
Bess’s challenge goes directly to the validity of the plea we must dismiss the appeal.
       Second, on this record there is no factual support for Bess’s assertions. A
defendant is entitled to relief if he received ineffective assistance of counsel that induced
him to enter his plea, but only if there is a factual basis for the claim.

       “‘The pleading—and plea bargaining—stage of a criminal proceeding is a
       critical stage in the criminal process at which a defendant is entitled to the
       effective assistance of counsel guaranteed by the federal and California
       Constitutions. [Citation.]’ [Citation.] ‘Although [the decision to plead
       guilty pursuant to a plea bargain instead of proceeding to trial is a decision
       ultimately] made by the defendant, it is the attorney, not the client, who is
       particularly qualified to make an informed evaluation of a proffered plea
       bargain.’ [Citation.]

               “‘Defense counsel have the obligation to investigate all defenses,
       explore the factual bases for defenses [citation] and the applicable law.
       [Citation.]’ [Citation.] ‘The defendant can be expected to rely on counsel’s
       independent evaluation of the charges, applicable law, and evidence, and of
       the risks and probable outcome of trial. [Citations.]’ [Citation.]

              “The entry of a plea must be a ‘“voluntary and intelligent choice
       among the alternative courses of action open to the defendant.”
       [Citations.]’ [Citation.] The voluntariness of a plea depends on ‘whether
       counsel’s advice “was within the range of competence demanded of
       attorneys in criminal cases.” [Citation.]’ [Citation.]




                                               4.
               “‘It is well settled that where ineffective assistance of counsel results
       in the defendant’s decision to plead guilty, the defendant has suffered a
       constitutional violation giving rise to a claim for relief from the guilty plea.
       [Citations.] [When the contention is that incompetent advice led to a
       defendant’s pleading guilty], a defendant must establish not only
       incompetent performance by counsel, but also a reasonable probability that,
       but for counsel’s incompetence, the defendant would not have pleaded
       guilty and would have insisted on proceeding to trial. [Citation.]’
       [Citations.]” (In re Vargas (2000) 83 Cal.App.4th 1125, 1133-1134.)
       The record consists only of a clerk’s transcript and a reporter’s transcript of Bess’s
plea. Bess asserts in his letter to this court that a video of the crime existed which would
prove his innocence. However, the record does not reflect (1) whether defense counsel
recommended Bess accept a plea; (2) the reasons for such a recommendation, if it was
made; (3) the investigation conducted by defense counsel before Bess entered into the
plea (which occurred two weeks after the charges were filed); (4) why Bess entered into a
plea at such an early stage of the proceedings; (5) if a video of Bess’s encounter with the
victim exists; and (6) if the video does exist, whether it supports Bess’s claim of factual
innocence. These are all facts which would have to be established to support a claim of
ineffective assistance of counsel, and can only be properly presented to this court through
a writ of habeas corpus. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1340.) In
the absence of these facts, it is impossible to determine if there is any merit to Bess’s
argument. Accordingly, we would reject it even had Bess obtained a certificate of
probable cause.4
                                      DISPOSITION
       Bess’s appeal is dismissed because he failed to obtain a certificate of probable
cause as required by Penal Code section 1237.5.


4      We are not suggesting that if Bess provides admissible evidence on each of these
issues he will be entitled to relief. We are merely pointing out the glaring holes that
preclude us from granting relief. It may be necessary to present additional facts to prevail
on a petition for a writ of habeas corpus.


                                              5.
