PEOPLE v. HULL

No. F073612.

THE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS OTIS HULL, JR., Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Laurie S. Wilmore , under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

THE COURT*

INTRODUCTION

Appellant Demetrius Otis Hull, Jr., pled no contest to a violation of Penal Code1 section 422 in exchange for an agreed upon sentence of three years' probation, including 365 days in the county jail. As part of the plea, it also was agreed that a second count of violating section 422 would be dismissed, with Hull agreeing to pay any restitution pertaining to the dismissed count. Hull was sentenced in accordance with the plea agreement. Hull appealed, but his certificate of probable cause was denied. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On February 1, 2016, the Stanislaus County District Attorney's Office filed a complaint against Hull alleging in count 1 that he threatened victim Lauren Napoleon within the meaning of section 422. Count 2 alleged a violation of section 422 against victim Kelley Trezvant. It also was alleged that Hull was subject to the provisions of section 1170, subdivisions (f) and (h)(3), making him ineligible for a term of imprisonment in the county jail on an executed sentence.

The People alleged that each victim received "telephone calls and Facebook posts threatening to `smoke them,' and other threatening language." Hull and codefendants arrived at the locations where the victims were and a handgun was displayed.

The public defender was appointed to represent Hull; however, that office declared a conflict and conflict counsel was appointed. Conflict counsel also declared a conflict, and a third attorney was appointed. The third attorney subsequently declared a conflict and a fourth attorney was appointed. The fourth attorney remained with the case. Hull's requests to reduce bail and for release on his own recognizance were denied.

On February 19, 2016, the parties were before the trial court with a proposed disposition; Hull was present and represented by counsel. Prior to accepting Hull's plea to the proposed disposition, the trial court advised Hull of his constitutional rights; accepted a waiver of those rights; had Hull agree to a factual basis for the plea; received assurances from Hull that he had sufficient time to discuss the plea agreement with defense counsel; and verified Hull understood the consequences of entering into the plea agreement.

The proposed disposition provided for Hull to plead no contest to count 1; count 2 would be dismissed, but with Hull paying restitution to that victim; and Hull would be placed on probation for three years, with 365 days to be served in the county jail. After accepting Hull's plea to the proposed disposition, the People dismissed count 2.

The trial court made findings that Hull understood the charges against him, his constitutional rights, and the consequences of the plea. The trial court also found that Hull "made knowing, intelligent, and voluntary waivers of [his] constitutional rights" and there was a factual basis for the plea.

The trial court imposed the agreed upon sentence of probation, with 365 days to be served in the county jail. Various statutory fines and fees were imposed. Custody credits of 23 actual days plus 22 conduct days were awarded, for a total of 45 days. Hull was directed to surrender himself at the county jail on May 19, 2016, to begin serving the balance of jail time.

On April 18, 2016, Hull filed a notice of appeal. His request for a certificate of probable cause was denied.

On April 19, 2016, the surrender date was modified to July 1, 2016, because Hull had been injured and was temporarily in a wheelchair.

DISCUSSION

Appellate counsel was appointed on June 21, 2016. Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on July 20, 2016. That same day, this court issued its letter inviting Hull to submit supplemental briefing. No supplemental brief was filed.

In his request for a certificate of probable cause, Hull states that "every time they switched" defense attorneys, "they told me to take the deal ... just not 2 strikes." Hull claims he was "confused" and did not receive adequate advice from defense counsel. The record is to the contrary.

Hull was charged with two felony offenses, violations of section 422, and it was alleged he was ineligible to be sentenced to a term in the county jail. Section 422 is a serious felony as defined in section 1192.7, subdivision (c)(1), which makes a conviction for violating section 422 a strike offense. (§ 667, subd. (d)(1).) Pursuant to the plea agreement negotiated by defense counsel, Hull pled no contest to one offense; the other charge was dismissed; avoided a prison term; and was sentenced to probation with jail time. Considering there were Facebook posts and witnesses to the offenses, defense counsel negotiated a favorable plea agreement.

As for Hull's claim that he was confused about the plea agreement, or perhaps its consequences, the trial court thoroughly examined Hull as to whether he understood the agreement and its consequences and had been provided sufficient time to discuss the agreement with defense counsel. The trial court took a two-hour recess to allow Hull to discuss the offer with his attorney, and allowed another pause in the proceedings for Hull to confer with counsel. Hull specifically was asked by the trial court if he had sufficient time to confer with defense counsel and Hull replied, "Yes." At multiple points during the acceptance of the plea, the trial court paused and specifically asked of Hull, "Do you understand that?" or a similar question. Each time, Hull replied, "Yes."

Hull's dissatisfaction with his plea agreement is nothing more than a case of "buyer's remorse." Buyer's remorse regarding a plea agreement does not constitute good cause to set aside a plea. (People v. Simmons (2015) 233 Cal.App.4th 1458, 1466.) The trial court imposed sentence in accordance with the terms of the plea agreement; therefore, grounds to set aside the plea pursuant to section 1192.5 are not present. (People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224.)

After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.

FootNotes


* Before Gomes, Acting P.J., Poochigian, J. and Meehan, J.
1. References to code sections are to the Penal Code unless otherwise specified.

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