THE PEOPLE v. JESSE ROSENFELD (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jesse Rosenfeld, in pro. per., and Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Jesse Rosenfeld pleaded no contest to 10 felony counts involving identity theft, commercial burglary, perjury and related crimes and the court dismissed the remaining count.   After entry of judgment Rosenfeld filed a notice of appeal and a request for a certificate of probable cause under Penal Code section 1237.5.¹  The court denied the request for a certificate of probable cause and we denied Rosenfeld's petition for a writ of mandate ordering the court to issue the certificate.

Rosenfeld's appointed counsel raised no issues on appeal and asked this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to Rosenfeld, result in reversal or modification of the judgment.  (People v. Kelly (2006) 40 Cal.4th 106;  People v. Wende (1979) 25 Cal.3d 436.)   Counsel also notified Rosenfeld that he could file a supplemental brief with the court.   Rosenfeld filed a “Response to Wende Brief” asking us to rule on his section 1538.5 motion and contending he received ineffective assistance in the trial court.   Rosenfeld also filed a request for judicial notice of the trial court's ruling on his petition for a writ of habeas corpus,² and “New Facts of Evidence on Habeas Corpus Consolidated with Direct Appeal.”   No writ petition on Rosenfeld's behalf is pending in this court.³  Nevertheless, to promote judicial economy we will treat Rosenfeld's three submissions together as a petition for a writ of habeas corpus alleging ineffective assistance of counsel.   We deny the petition and affirm the judgment for the reasons explained below.

FACTS AND PROCEEDINGS BELOW

The evidence at the preliminary hearing showed that Rosenfeld was the passenger in a vehicle stopped by Santa Monica police officers for a traffic violation.   Upon searching the interior of the vehicle the police found driver's licenses, credit cards, Social Security cards and other forms of identification;  some bearing Rosenfeld's name;  some bearing the names of other individuals;  and some bearing the names of other individuals with Rosenfeld's picture.   The police seized these documents and they were admitted at Rosenfeld's preliminary hearing.

On September 14, 2010, the court granted Rosenfeld's request to represent himself.   Two weeks later Rosenfeld filed a motion in propria persona under section 1538.5 seeking to suppress documents found between the front seats and on the floorboard of the car on the passenger side.   The trial court did not hear that motion.   Instead, when the court called the motion on November 8, 2010, Rosenfeld told the court he wished to give up his “pro. per.” status and have his former deputy public defender “take over the case” and specifically “take over the 1538.5.”   The court granted that request and took the section 1538.5 motion off calendar.⁴  After an unreported discussion, Rosenfeld pleaded no contest to the charges against him except for count 6 which the court dismissed.   The court sentenced Rosenfeld to a prison term of 5 years 8 months.

DISCUSSION

We have reviewed the record on appeal and have found no arguable issues.   By entering a plea of no contest Rosenfeld admitted the sufficiency of the evidence establishing the crime, and therefore he is not entitled to a review of any issue that goes to the question of whether he is guilty or not guilty.   (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)   An exception to this rule exists for issues relating to the validity of a denial of a motion to suppress (§ 1538.5, subd. (m)) but, as discussed above, the court did not deny Rosenfeld's motion to suppress.   It took the motion off calendar after Rosenfeld told the court he wanted to give up his pro per status and have his previous attorney take over the motion.

Rosenfeld argues his trial counsel provided ineffective assistance in failing to read his suppression motion, review the evidence and argue the motion.   We disagree.

If Rosenfeld is contending that counsel should have read the motion, reviewed the evidence and presented oral argument as soon as she was reappointed, we disagree.   Counsel was called to the courtroom immediately after Rosenfeld revoked his pro per status and appears to have arrived minutes later.   Counsel could not have competently argued the motion on such short notice.

If Rosenfeld is arguing that his counsel provided ineffective assistance in not setting the motion for a hearing at a later date, his argument is not supported by the record.   A letter from trial counsel to appellate counsel dated August 31, 2011, which Rosenfeld has included in the record, states that trial counsel “would not have been prepared to go ahead with the [section 1538.5] motion” on the date she was reappointed and that after the court took the motion off calendar “there was some off the record discussion and we arrived at a settlement of the case.”   The reporter's transcript supports counsel's explanation.   Furthermore, had the motion been brought it is not reasonably probable that it would have succeeded because defendant's own evidence shows that the driver of the car consented to the search.  (Cf. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [“a search conducted pursuant to a valid consent is constitutionally permissible”].)   Rosenfeld has included in the record a report that his trial counsel received from her investigator in July 2010 concerning a conversation that the investigator had with James Pressimore, the driver of the car.   According to the report Pressimore “said that after the police arrested the defendant they asked him if they could search his vehicle and he said he told the police[,] ‘Go right ahead and search the car[;] there is not[h]ing in the car to find.’ ”

DISPOSITION

The judgment is affirmed.   Petition for writ of habeas corpus denied.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. We grant that request..  FN2. We grant that request.

FN3. We had previously denied Rosenfeld's habeas petition and his request to have the petition heard with this appeal.  (In re Jesse Rosenfeld on Habeas Corpus (B235620) Sept. 14, 2011.).  FN3. We had previously denied Rosenfeld's habeas petition and his request to have the petition heard with this appeal.  (In re Jesse Rosenfeld on Habeas Corpus (B235620) Sept. 14, 2011.)

FN4. “The clerk:  So is the court not going to rule on ․“The court:  I have not ruled.   Unless [defense counsel is] telling me to go ahead and rule, I'm not going to rule.”   The court then told the witnesses on the motion that “if the motion is renewed, you'll be resubpoenaed on it.”.  FN4. “The clerk:  So is the court not going to rule on ․“The court:  I have not ruled.   Unless [defense counsel is] telling me to go ahead and rule, I'm not going to rule.”   The court then told the witnesses on the motion that “if the motion is renewed, you'll be resubpoenaed on it.”

MALLANO, P. J. CHANEY, J.