People v. Coghill CA4/3 ( 2014 )

Filed 6/16/14 P. v. Coghill CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049249
v. (Super. Ct. No. 13WF1570)
DEREK JOSEPH COGHILL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Edward
W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
We appointed counsel to represent Derek Joseph Coghill on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her
client but advised the court no issues were found to argue on his behalf. Coghill was
given 30 days to file written argument on his own behalf. That time has passed, and he
has not filed a brief.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436. The court in Wende explained a Wende brief is one that sets forth
a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
appellant himself raises specific issues in a Wende proceeding, we must expressly address
them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106,
110, 120, 124 (Kelly).) Here, Coghill did not file a supplemental brief raising any issues.
Having filed a Wende brief, counsel, pursuant to Anders v. California
(1967) 386 U.S. 738, provided the court with information as to issues that might arguably
support an appeal. Counsel raised the following five questions: (1) whether there was
sufficient evidence Coghill violated probation; (2) did Coghill agree to termination of
Proposition 36 (Pen. Code, § 1210 et seq.) and, if not, was termination otherwise proper;
(3) after revoking probation and imposing sentence, was it proper for the trial court to
order as condition of probation Coghill pay a mandatory drug program fee of $150 for
each specified drug offense; (4) did the court abuse its discretion in refusing to issue a
certificate of probable cause; and (5) did the court properly take no action on Coghill’s
petition to modify his sentence because his case was on appeal.
We have reviewed the record in accordance with our obligations under
Wende and Anders and found no arguable issues on appeal. We affirm the judgment.
FACTS
Coghill entered a plea of guilty to the following: count 1-possession of a
controlled substance, methamphetamine, in violation of Health and Safety Code
section 11377, subdivision (a); count 2-misdemeanor possession of controlled substance
paraphernalia in violation of Health and Safety Code section 11364.1, subdivision (a);
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and count 3-possession of more than 28.5 grams of marijuana in violation of Health and
Safety Code section 11357, subdivision (c). Coghill admitted he suffered a prison prior
in February 2009, in case No. 09WF0104, for a violation of Penal Code section 487,
subdivision (a), pursuant to Penal Code section 667.5, subdivision (b).
Before entering the pleas and admission, Coghill stated he had the chance
to discuss the charges and the case thoroughly with his counsel. Coghill acknowledged
he had carefully read all the terms in his plea and he initialed and signed the form
expressing his agreement.1 He further indicated he understood he was giving up all the
rights that were described in the plea form. The court advised Coghill the maximum
possible sentence was four years and told him he would be granted probation, but if he
violated the terms of his probation he could be sentenced up to the full four years.
Coghill indicted he understood the court’s advisement.
When asked if his handwritten statement of the facts was true and correct,
Coghill said, “Yes.” When asked if anyone had promised him anything or threatened him
to force him to plead guilty, Coghill, answered, “No.” Coghill then entered a guilty plea
to all counts and admitted the prior. The court accepted the plea and admission and
found Coghill knowingly, intelligently, and voluntarily waived his constitutional rights
and found he understood the consequences of pleading guilty. The court also found there
was a factual basis for the plea. Counsel joined in the plea and waivers.
The trial court placed Coghill on three years formal, supervised probation.
The court ordered him to pay a number of fines and fees, and to register as a narcotics
offender. In addition to other terms and conditions of probation, the court imposed
various terms and conditions of probation, including a condition that Coghill complete
1 In the change of plea form, Coghill wrote, “[On] May 26, 2013, I willfully
and unlawfully possessed a useable amount of methamphetamine, a controlled substance,
a pipe used to smoke it, and more than 28.5 grams of marijuana.”
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the Proposition 36 program and report to Department C60 in the Central Justice Center to
begin the Proposition 36 program on July 10, 2013, at 8:30 a.m. The court also advised
Coghill that if he failed to report to Department C60 as directed, he would “have a
probation violation right off the bat.”
Despite the very specific direction from the court, Coghill failed to appear
in court on July 10, 2013. The court ordered probation revoked and ordered a bench
warrant to be issued. On July 15, 2013, Coghill appeared in court in custody represented
by a lawyer from the Public Defender’s Office. He waived his right to a hearing and
admitted the probation violation. The court accepted the admission and found there was
a factual basis for the admission. The court reinstated probation and ordered Coghill to
report to the Probation Department the following day. The court again ordered him to
enroll in the Proposition 36 program.
On September 10, 2013, the probation officer filed a petition for
arraignment on a probation violation alleging Coghill violated the terms of probation in
that (1) on September 7, 2013, the Seal Beach Police Department arrested him for
violating a restraining order, vandalism, and resisting arrest; (2) on August 19, 2013, he
was terminated from the Proposition 36 track 1 at New Beginnings for missing a required
test; (3) he was arrested at his deceased father’s house in Surfside Beach, that it appeared
he had been living there on a permanent basis, and he had failed to inform his probation
officer that he was no longer living at his mother’s house in Huntington Beach; (4) he
failed to report to probation on August 20, 2103, as directed; and (5) he failed to submit
to narcotic testing on August 20, 2013, by failing to report to probation.
On October 23, 2013, Coghill appeared in court in custody represented by
the Public Defender’s Office. Prior to addressing the probation violation matter, the trial
court held a Marsden2 hearing. At the closed hearing, Coghill complained his lawyer
2 People v. Marsden (1970) 2 Cal.3d 118.
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was not working in his best interest because he had asked her to do something related to
his case and she refused. Counsel advised the court she was prepared to proceed and
represent Coghill. The court denied Coghill’s request to change attorneys.
Later in open court, the trial court advised Coghill of his rights, and he
waived his rights, including the right to a probation violation hearing. Coghill admitted
all five allegations in the petition. Counsel joined in the waivers, but not in the
admissions. The court found Coghill in violation of probation on the grounds he
admitted. The court imposed a divided sentence pursuant to Penal Code section 1170.
The court ordered Coghill to serve nine months in county jail, followed by 15 months of
mandatory supervision under numerous terms and conditions. The court also imposed
various fines and fees. The court specifically ordered Coghill to pay the mandatory drug
program fee of $150 for each specified drug offense, a fee the court had not previously
ordered. The court indicated that if Coghill violated any conditions of the mandatory
supervision, he could be sent to county jail to serve the remainder of his sentence, less
any credits for time served. When the court asked if he accepted all the terms and
conditions of mandatory supervision, Coghill answered, “Yes.” The court struck the
prison prior for purposes of sentencing only, and suspended the sentences for the
misdemeanors in counts two and three, dismissed traffic citations, and ordered Coghill to
report to the collections department to arrange payments in other matters.
On November 5, 2013, Coghill filed a timely notice of appeal with a
request for a certificate of probable cause. In his notice, he alleged ineffective assistance
of counsel and judicial misconduct. In his request for a certificate of probable cause
attached to the notice of appeal, Coghill alleged ineffective assistance of counsel and
judicial misconduct, but provided little detail of the alleged wrongs. As to the ineffective
assistance of counsel claim, Coghill asserted counsel “did not object . . . to alleged
prosecutorial and judicial misconduct.” With respect to the judicial misconduct, Coghill
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alleged, “The Canons of Judicial Conduct dictate that the trial judge must be impartial,
dignified and courteous. [Citation.]”
On November 14, 2013, the trial court received Coghill’s motion to modify
his sentence. The court took no action as the matter was on appeal. On December 3,
2013, the court denied Coghill’s request for a certificate of probable cause. On
December 9, 2013, the court filed Coghill’s petition for modification of sentence, and
took no action stating the matter was on appeal.
DISCUSSION
The fact that counsel filed the opening brief under Wende confirms she
does not believe the issues she listed are arguable. When specific issues are raised by the
appellant himself in a Wende brief, we must expressly address those issues in our
opinion. (Kelly, supra, 40 Cal.4th at pp. 110, 120, 124.) In this case, Coghill did not file
a supplemental brief. We have also reviewed the record in accordance with our
obligations under Wende and Anders and considered the issues listed by counsel. We
find no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
RYLAARSDAM, J.
THOMPSON, J.
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