Filed 11/26/13 P. v. Mejias CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039365
                                                                    (Santa Clara County Super. Ct.
         Plaintiff and Respondent,                                   Nos. C1066707 and C1094466)

         v.

RUBEN ALBERTO MEJIAS,

         Defendant and Appellant.



                                              I. INTRODUCTION
         After no contest pleas, defendant Ruben Alberto Mejias was convicted of
carjacking, forgery, and first degree burglary. Defendant also admitted having two prior
convictions qualifying both as strikes and as serious felonies and a third prior felony
conviction for which he served a prison sentence. Following the granting in part of
defendant’s motion to dismiss the strike conviction allegations, the trial court sentenced
defendant to 33 years in prison. Defendant filed a notice of appeal with a certificate of
probable cause claiming that his plea was not entered knowingly and voluntarily because
his attorney failed to inform him of certain defenses.
         By letter dated June 19, 2013, this court notified defendant that his appellate
counsel filed a brief identifying no arguable issues on appeal and invited defendant to
submit any argument on his own behalf. Defendant responded with a handwritten 11-
point list of issues. For the reasons stated below, we will affirm the judgment.
                              II. STANDARD OF REVIEW
       We review the entire record to determine whether appointed counsel has correctly
determined that there are no arguable appellate issues. (People v. Wende (1979) 25
Cal.3d 436, 441.) In performing our review, we are required to give a brief description of
the facts, the procedural history, the crimes of which the defendant was convicted, and
the punishment imposed, and to address any contentions personally raised by the
defendant. (People v. Kelly (2006) 40 Cal.4th 106, 124.)
                   III. FACTUAL AND PROCEDURAL SUMMARY
       Defendant was charged by a first amended complaint in docket No. C1066707
with carjacking (Pen. Code, § 215)1, selling or aiding in selling stolen property (§ 496,
subd. (a)), and forgery (§ 470, subd. (a)), all felony offenses occurring on or about
January 15, 2010. The complaint alleged two prior convictions qualifying both as strikes
and as serious felonies (§§ 667, subds. (b)-(i); 1170.12; 667, subd. (a)) and a third prior
felony conviction for which defendant served a prison sentence (§ 667.5, subd. (b)). At
the request of defendant’s attorney, in March 2010 the trial court ordered a psychiatric
evaluation to assess defendant’s mental capacity and competency. Based on the court-
ordered evaluation, the court found defendant not competent to stand trial and, in August
2010, committed defendant to the State Department of Mental Health for evaluation and
treatment to restore competency. Based on a December 2011 Department of Mental
Health psychiatric report containing a bipolar disorder diagnosis and a treatment plan
involving psychiatric medications, in January 2011 the court found defendant’s
competency to have been restored and reinstated criminal proceedings.
       After the trial court denied defendant’s February 2011 motion to relieve counsel
pursuant to People v. Marsden (1970) 2 Cal.3d 118, defendant was held to answer on the


       1
           Unspecified section references are to the Penal Code.
carjacking and forgery offenses2 in docket No. C1066707. On April 15, 2011, defendant
pleaded no contest to the carjacking and forgery changes and admitted the prior
convictions alleged in docket No. C1066707. Defendant also pleaded no contest to
residential burglary3 in docket No. C1094466, and admitted the same prior felony
convictions in that case as alleged in docket No. C1066707.
        In September 2011, defendant moved in both cases to strike prior felony
convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Before the hearing on the Romero motion, through conflict counsel defendant filed a
motion to withdraw his plea based on ineffective assistance of counsel. Defendant filed a
declaration with his reply to the motion to withdraw his plea stating that he was not
informed by his attorney of mental health defenses in the burglary case or the significant
factual discrepancies in the carjacking case between the victim’s written statement to the
police and his testimony at the preliminary hearing. In his declaration defendant waived
the attorney-client privilege as to his mental health defense but not his other defenses. At
the time set to hear the motion to withdraw his plea, defendant made an oral motion that
his conflict counsel be relieved pursuant to Marsden, supra, 2 Cal.3d 118. The court
denied the Marsden motion and a week later denied defendant’s motion to withdraw his
plea.


        2
          The victim testified at the preliminary hearing that he left his car unoccupied
with the engine running on January 15, 2010 at about 7:15 a.m. when he ran to his
apartment for his cell phone. While attempting to get back into his car, defendant pushed
the victim out of the way, entered the car and drove away. After police located his car,
the victim found a handwritten bill of sale in the car with his signature forged. According
to the probation report, defendant admitted to drafting the document. He planned to sell
the car for $400.
        3
          According to the probation report, on June 22, 2009 defendant entered the
victim’s apartment through an open window. When the victim returned home, defendant
was in her bedroom and fled through a window. The victim’s roommate reported his
Bulova watch and a fraternity pin missing.
       In January 2013 the court granted defendant’s Romero motion in part, striking one
of defendant’s two prior strike convictions. The court found that defendant “was not
receiving sufficient treatment for his mental [bipolar] illness at the time he committed the
strike priors, and . . . that mental illness was a significant contributor to the commission
of those offenses.” The court noted further: “Those strike priors occurred over a short
period of time . . . the defendant did not engage in actual violence, despite the fact . . . on
one occasion there was an individual present in a different room of the house. And . . .
both strikes were sentenced together.”
       Defendant was sentenced to a prison term of 29 years and 4 months in docket No.
C1066707 and a consecutive 44-month term in docket No. C1094466, for a total prison
term of 33 years. He filed a timely notice of appeal in both cases with an order granting
his request for a certificate of probable cause. His probable cause request asserts that his
plea was not made knowingly and intelligently because his attorney did not advise him of
mental state defenses.
                          IV. DEFENDANT’S ARGUMENTS
       A.     CERTIFICATE OF PROBABLE CAUSE
       Defendant identifies five issues which we consider encompassed by the trial
court’s certificate of probable cause: (1) Defendant was not informed of his mental state
defenses, (2) defendant received ineffective assistance of counsel, (3) defendant was
unable to withdraw his plea, (4) defendant was coerced into pleading no contest and
filing a Romero motion, and (5) defendant should have gone to trial. On this record we
find no merit to defendant’s claims.
       At his change of plea hearing, the trial judge asked defendant to listen very
carefully to the questions he was going to ask and to interrupt the proceeding if he did not
understand something. Defendant responded that he would do so. Defendant answered
“yes” when asked whether he was pleading freely and voluntarily and on the advice of
his counsel. He also responded “yes” when asked if he understood that he was giving up
his right to either a jury or court trial. After explaining that it is “almost impossible” to
take back a plea, the judge asked defendant whether he had enough time to talk with his
attorney about all aspects of his case, including possible defenses. Defendant responded
“yes.” Defendant’s attorney also responded “yes” when asked whether he had had
enough time to discuss defendant’s case with him and whether he was satisfied that
defendant was intelligently giving up his rights and pleading no contest. On its face, the
hearing transcript shows no coercion, ineffective assistance of counsel, or failure on the
part of defendant’s counsel to inform defendant of his defenses.
       The record also fails to show that the trial court’s denial of defendant’s motion to
withdraw his plea was an abuse of discretion. (People v. Wharton (1991) 53 Cal.3d 522,
585; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Section 1018 allows a trial court
to grant a defendant’s application to withdraw his or her plea of guilty or no contest
“before judgment . . . for a good cause shown.” While “[m]istake, ignorance, or any
other factor overcoming the exercise of free judgment is good cause for withdrawal of a
guilty plea, . . . good cause must be shown by clear and convincing evidence.” (People v.
Cruz (1974) 12 Cal.3d 562, 566.)
       Although defendant asserted in his declaration supporting the motion that his
attorney did not inform him “about any possible mental health defenses . . . on the
burglary case,” he insisted on submitting the motion on his declaration without testifying.
After reviewing the moving papers, defendant’s declaration, the People’s opposition, and
the reporter’s transcript of the change of plea hearing, the court concluded that defendant
failed to meet his burden.
       We also note that defendant submitted his motion to withdraw the plea on the
papers after unsuccessfully moving to withdraw the motion, that the request to withdraw
the motion was denied because defendant had previously withdrawn the motion, and that
counsel who represented defendant at his change of plea hearing was present and
prepared to testify on behalf of the People. Under these facts, we find no deficiency in
counsel’s decision to submit the motion to withdraw the plea on the papers and without
testimony. (People v. Scott (1997) 15 Cal.4th 1188, 1211 [ineffective assistance of
counsel established by showing counsel’s representation was both deficient and
prejudicial].)
       In sum, on this record we find no error in the court’s entry of defendant’s pleas or
in the denial of defendant’s motion to withdraw the pleas.
       B.        DEFENDANT’S OTHER ARGUMENTS
                 1.   Non-Reviewable Issues
       Aside from the competency issue addressed below, defendant’s remaining claims
are not cognizable on appeal because they are neither encompassed by the certificate of
probable cause nor otherwise reviewable. These claims are: (1) the carjacking victim lied
at the preliminary hearing, (2) the carjacking victim lied about being pushed by
defendant, (3) the one-person lineup in the carjacking case was tainted, (4) someone else
was driving the stolen car when defendant was arrested in the carjacking case, and (5) “I
cannot understand my sentence.”
       California Rules of Court, rule 8.304(b)(4), has codified precedent authorizing
appeals after pleas of guilty and no contest without a certificate in only two situations:
when the appeal is based on either “(A) The denial of a motion to suppress evidence
under Penal Code section 1538.5; or [¶] (B) Grounds that arose after entry of the plea and
do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4); People v. Lloyd
(1998) 17 Cal.4th 658, 663-664.) Defendant’s remaining claims do not come within
either exception. (See People v. Voit (2011) 200 Cal.App.4th 1353, 1364 [issues
concerning a defendant’s guilt or innocence are not cognizable on appeal from a guilty or
no contest plea].)
                 2.   Competency Challenge
       To the extent defendant’s final argument -that he is “still” incompetent to stand
trial -is a challenge to the lawfulness of proceedings occurring after entry of defendant’s
plea, it is reviewable without a certificate of probable cause. (People v. Oglesby (2008)
158 Cal.App.4th 818 [certificate of probable cause not needed to challenge court’s failure
to sua sponte to hold mental competency hearing before sentencing].) The court’s duty to
conduct a competency hearing arises when substantial evidence of incompetence is
presented at any time “prior to judgment.” (People v. Kelly (1992) 1 Cal.4th 495, 542,
citing Pen. Code, § 1368.) When a defendant has been found competent earlier in the
criminal proceedings, a trial court need not conduct another competency hearing “ ‘unless
it “is presented with a substantial change of circumstances or with new evidence” casting
a serious doubt on the validity of that finding.’ [Citations.]” (Kelly, supra, 1 Cal.4th at
pp. 542-543.)
       Based on the December 8, 2010 opinion and recommendation of state
psychiatrists, in January 2011 the court found that defendant had been restored to
competency. The record presented no new evidence of incompetency or evidence of
changed circumstances. (Kelly, supra, 1 Cal.4th at pp. 542-543.) To the contrary, in
January 2013, three weeks before defendant was sentenced, the court heard extensive
testimony from Dr. Greene, an expert in forensic psychiatry retained by defendant. In
support of defendant’s Romero motion, Dr. Greene, who met with defendant three times
in 2011, opined that defendant suffered from bipolar disorder and that he was being
properly medicated consistent with his discharge instructions from the state mental
hospital a year earlier. And at defendant’s sentencing hearing, defendant’s attorney
indicated that there was no legal cause why sentence should not be imposed. In sum, we
find no error in the trial court not making further competency inquiries after defendant
entered his no contest pleas.
       Our review of the entire record has revealed no arguable issues on appeal.
                                    V. DISPOSITION
       The judgments in docket Nos. C1066707 and C1094466 are affirmed.
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Manoukian, Acting P.J.




____________________________

Márquez, J.
