Filed 6/29/16 P. v. Russell CA4/1
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                    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.




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