THE PEOPLE v. Elizabeth Borjas, Defendant and Appellant. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Elizabeth Borjas appeals from the judgment entered following her plea of no contest to the making of criminal threats (Pen.Code, § 422) ¹ and her admission that she previously had suffered five convictions for which she served prison terms (§ 667.5, subd. (b)).  The trial court sentenced Borjas to two years in state prison.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.²

On November 19, 2008, Desiree Soto was working in the clerk's office and reception area of the Children's Court in Monterey Park. When she was working, Soto kept her name tag in her pocket or on her desk.   The name tag bore both her first and last names.

That morning, Soto was at the reception counter when she was approached by Borjas, who asked Soto if her case was on calendar that day.   Soto asked Borjas for the child's name and Borjas gave it to her.   However, when Soto put the name into the court's computer system, no information came up onto the screen.   Soto asked Borjas if the case could be under another name and Borjas indicated that it could not.   Instead, Borjas “became upset.”   When Soto again asked for other names, Borjas “became more upset and started yelling and cursing.”   She called Soto a “bitch” several times, then asked Soto for her first and last name.   Soto refused to give her name to Borjas and, in part because the incident with Borjas had lasted for approximately five minutes and she had a line of people waiting to speak with her, Soto called on the security officers on duty for assistance.   At that point, Borjas was escorted from the counter by a security officer.   After speaking with the officer, Borjas walked up the courthouse stairs.

Later that morning, a security officer showed to Soto a piece of paper.   According to Soto, the document “state[d][her] name in the middle of what, to [Soto], look[ed] like a scope, where you look through a round circle with a cross in the middle.”   Her first and last names were in the center of the cross, which had been written on a “Fire Academy Training notepad.”  “[R]ight on the bottom of the scope it [said] ‘Fuego.’  “ Soto explained that “fuego” is Spanish for the word “fire.”   The note made Soto feel “[u]neasy,” “[u]ncomfortable” and frightened.   She showed the note to her supervisor and the Monterey Park Police Department.

Luis Montana works for the Sheriff's Department as a security officer at the Edelman Children's Court in Monterey Park. On the morning of November 19, 2008, Montana was working by the X-ray machine, which is approximately 20 feet from the front desk.   Montana was “running the X-ray machine” when he “heard somebody yelling” at the counter.   He turned around to face the counter and heard Soto calling him, asking him to come over.

Montana could hear Borjas “yelling” and “screaming” at Soto. He indicated that, “normally, ․ when [he] see[s] people like that, [he] approach[es] to talk to these people and [tries] to control the situation and ․ keep the peace there.”   As he approached the counter, Montana saw that Borjas was standing up against it, right in front of Soto. Borjas was “cussing and yelling and [screaming] profanity” at Soto. When Montana attempted to speak with Borjas, Borjas continued to scream and curse.   Montana told Borjas that she needed to calm down or he would escort her from the building.   When Montana then told Borjas that if she needed more information she could speak with Soto's supervisor on the second floor, Borjas turned, left the counter and began to walk up the courthouse stairs.

Still later that morning, when no one was at the counter, Montana saw Borjas lean over the counter and place a piece of paper on the desk there.   Borjas then left the building.

After Montana told his partner what had happened earlier that morning, the partner went to the desk and retrieved the paper Borjas had left.   After looking at the document, Montana told his partner to call their supervisor.

After 10:00 a.m., Montana's duties involved patrolling the building.   As he was walking toward the front entrance, he saw his supervisor, a sergeant, “coming to talk to [Borjas] right outside the building.”

2. Procedural history.

On April 20, 2009, Borjas was charged by information with one count of making criminal threats in violation of section 422 in that she “willfully and unlawfully threaten[ed] to commit a crime which would result in death and great bodily injury to Desiree Soto, with the specific intent that the statement be taken as a threat.”   It was further alleged as to count 1 that the defendant, Elizabeth Borjas, had suffered five prior convictions, for which she served prison terms within the meaning of section 667.5, subdivision (b).

At proceedings held on January 22, 2010, Borjas requested a Marsden ³ hearing.   After the trial court cleared the courtroom of everyone except counsel, Borjas and “necessary [court] personnel,” Borjas addressed the court and stated:  “Your Honor, this whole case is because what happened was my son is missing and I was in the wrong courtroom--courthouse.   I went to the Children's Court inadvertently thinking I had a court date there and the court clerk made a criminal or threat report three days later and that's what I'm arrested for.  [¶] [My counsel] has not helped me to achieve the goal to convey to the court my innocence [and] I have not had a court date to even ․ be able to represent myself to the court.”   Borjas continued, “I haven't had the opportunity for anything.  [My counsel,] I don't feel he's been ․ hostile to me.   He's lied to me.   He never came to see me.   Never video[-]conferenced me.   He didn't want to get any witnesses.   He is uncooperative with me.  [¶] You offered me some thermals the last time I saw you.   I didn't get ‘em.   Everything that he tells me is not true.”

The trial court explained that it was not counsel's responsibility to get Rojas the thermals she had requested.   The order for them had been prepared by counsel, then Faxed to the appropriate jail personnel by the court.   The court continued, “[Counsel] doesn't control whether or not the county jail complies with that order, Okay? He did what he was supposed to do․”

Borjas then indicated that, since the preliminary hearing, her counsel had failed to come see her or set up a video-conference with her.   She complained that counsel had told her she was “repetitive,” that when they “talk about getting the witnesses that [she believes are necessary] for [her] defense,” he tells her they “don't need them.”   In addition, he had “yelled” at her when she “wrote the detective that had called [her] on the phone before [she] got arrested” and, finally, counsel had refused to give her copies of the police report.

Counsel for Borjas explained that, in a previous matter in a different court, Borjas had pled to a “strike” in a case involving charges similar to the ones in the present matter.   Counsel continued, “Miss Borjas seems to think that she's getting out on that case but ․ she has pled so they are simply waiting for a sentence on our case.”   Counsel then indicated that he had not done a video-conference with Borjas, but had spoken at length with her on several occasions in the lockup.   He had taken extensive notes regarding her case and had informed her that, “[t]he witnesses she is talking about are witnesses that [the] People would need to bring in.”   Counsel indicated that he had had a doctor appointed to examine Borjas because he felt that it would be beneficial to her case.   The doctor had indicated to counsel that he would be seeing Borjas within the next few days and providing counsel with a report within the following week.   Finally, counsel stated:  “Today is zero of 30.   I'm essentially ready for her case depending on what happens with the [doctor's] report.”

After Borjas again voiced her complaints regarding counsel, the trial court indicated that it appeared to the court that counsel was “adequately representing [Borjas].”   Accordingly, the court denied Borjas's Marsden motion.

On March 3, 2010, the trial court indicated that, if Borjas were to “plead open,” it could stay imposition of sentence on her alleged prior convictions and prison terms.   The trial court indicated that it would impose the midterm of two years in state prison, the sentence to run concurrently to the sentence recently imposed in another matter, and that it would stay any sentence which could be imposed for the “667.5” allegations.   Borjas indicated she was willing to accept the court's offer.

Before taking Borjas's plea, the prosecutor advised her that the “charge that [she was] pleading to [was] a strike offense under the Three Strikes law.”   The prosecutor continued, “You'll now have this strike on your record and it's my understanding you pled to another strike in [that] case that I just indicated you were sentenced to prior so you will have two strikes on your record.”   When Borjas was asked if she understood, she replied, “Yes.”

After waiving her right to a jury or court trial, her right to confront and cross-examine the witnesses against her, her right to subpoena witnesses and present a defense and her privilege against self-incrimination, Borjas pleaded “[n]o contest” to the crime of “criminal threats” in violation of section 422.   She then admitted her prior convictions for which she served prison terms, including unlawfully causing a fire in violation of section 452, subdivision (c) on August 5, 1994, driving under the influence and causing bodily injury to another person in violation of Vehicle Code section 23153, subdivision (a) on March 23, 1995, unlawfully possessing a controlled substance in violation of Health and Safety Code section 11377 on May 16, 1996, battering a custodial officer in violation of section 243.1 on September 8, 2000, and unlawfully possessing a controlled substance in violation of Health and Safety Code section 11377 on August 3, 2004.

Borjas was awarded presentence custody credit for 427 days actually served and 212 days of good time/work time, or a total of 639 days.   She was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov.Code, § 70373).   The trial court set a hearing for April 30, 2010 to determine whether restitution was owed.   However, at the People's request, “the restitution hearing [was later] taken off calendar.”

Borjas filed a timely notice of appeal on April 30, 2010.   Her request for a certificate of probable cause, in which she asserted her trial counsel had advised her that her conviction in this matter would not amount to a second “strike,” was denied on April 30, 2010.   Also on April 30, 2010, Borjas's “Petition for Modification of Sentence,” in which she requested that the trial court “strike the 2 strikes [she] claims to have been given,” was denied.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed August 26, 2010, the clerk of this court advised Borjas to submit within 30 days any contentions, grounds of appeal or arguments she wished this court to consider.   On October 28, 2010, Borjas filed a “Supplemental Brief” in which she claims “[t]he entire police report [was] fabricated by the [victim]” and that the incident at the counter at the courthouse did not occur in the way the victim described it at the preliminary hearing.   In addition, Borjas asserts she did not intentionally leave a threatening note on the victim's desk.   Finally, she argues her counsel in the trial court was ineffective.   She states she “would have won in trial if [the evidence had been] presented honestly with [her] books & witnesses, explaining and verifying [her] accounts.”

“ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’  “ (People v. Mazurette (2001) 24 Cal.4th 789, 792;  People v. Hunter (2002) 100 Cal.App.4th 37, 40.)   The statute applicable here is section 1237.5.   That section provides in relevant part:  “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere ․ except where both of the following are met:  [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”

Here, Borjas filed with the trial court a document contesting the voluntariness of her plea.   In spite of the fact that the record indicates she was specifically advised that her plea of no contest would result in a second “strike,” she indicates that, at least in part due to her counsel's advice, she believed that by entering a plea of no contest she would avoid acquiring a strike.   The trial court, however, denied Borjas's request for a certificate of probable cause.   Without such a certificate, Borjas cannot now argue that her offense was improperly deemed a strike or that the evidence at the preliminary hearing failed to accurately reflect the incident leading to her conviction.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The facts have been taken from the transcript of the preliminary hearing..  FN2. The facts have been taken from the transcript of the preliminary hearing.

FN3. People v. Marsden (1970) 2 Cal.3d 118..  FN3. People v. Marsden (1970) 2 Cal.3d 118.

CROSKEY, Acting P.J. KITCHING, J.