Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD211071 John M. Thompson, Judge.
O'ROURKE, J.
Hunter Coleman Porter pleaded guilty to one count of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)) and admitted enhancements for personal use of a firearm (§ 12022.5, subd. (a)), commission of a felony for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and personal infliction of great bodily injury (§ 12022.7, subd. (a)), under a plea agreement in which he acknowledged possible maximum punishment of 26 years in state prison as well as a specified fine and parole. On the day of his sentencing hearing, Porter unsuccessfully sought to withdraw his guilty plea on grounds his attorney's investigator failed to interview witnesses assertedly exonerating him of the crimes and he was under the influence of marijuana and heroin when he entered his plea. Porter was later sentenced to a 26-year prison term.
All statutory references are to the Penal Code unless otherwise indicated.
Although Porter asserted before the trial court that he was under the influence of drugs as one ground for withdrawing his plea, we do not consider this argument on review because Porter does not raise this point as a ground for appeal.
On appeal, Porter contends the trial court abused its discretion by failing to hold a hearing to determine whether substitute counsel should have been appointed to file a formal motion before denying his request to withdraw the guilty plea. Because we conclude Porter did not seek to discharge his retained attorney and there was no colorable basis for withdrawing his plea, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts of the underlying offense from the preliminary hearing transcript, which by stipulation served as the factual basis for Porter's guilty plea.
On January 8, 2008, Porter, a documented Lincoln Park gang member, fired multiple shots with a semi-automatic weapon from the front passenger seat of a vehicle into a group of young males, after a rival gang member within the group threw an object towards the vehicle. The shots missed the men and struck a nearby seventeen year old female student. Following a police investigation, Porter was arrested and a witness to the shooting positively identified Porter as the shooter in a curbside lineup.
Procedural Background
The People filed a multi-count amended information against Porter, charging him with attempted murder (§§ 187, subd. (a), 664; count 1), assault with a semi-automatic firearm (§ 245, subd. (b); count 2), and discharging a firearm from a motor vehicle (§ 12034, subd. (c); count 3). As to all counts, it was alleged that Porter committed the offense for the benefit of a criminal street gang (§ 186.22, subds. (b)(1), (b)(4)) and intentionally inflicted great bodily injury as a result of discharging a firearm from a motor vehicle (§ 12022.55). As to count 1, it was alleged that Porter intentionally and personally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)). As to counts 1 and 2, it was alleged that Porter personally used a firearm (§ 12022.5, subd. (a)). As to counts 1 and 3, it was alleged that Porter was a principal in the underlying offenses and that at least one principal personally used a firearm and proximately caused great bodily injury (§ 12022.53, subds. (d), (e)(1)). As to counts 2 and 3, it was alleged that Porter personally inflicted great bodily injury (§ 12022.7, subd. (a)).
On October 15, 2009, Porter entered a guilty plea to the count 2 charge of assault with a semi-automatic weapon (§ 245, subd. (b)) and admitted to the personal use of a firearm (§ 12022.5, subd. (a)), commission of a felony for the benefit of a street gang (§ 186.22, subd. (b)(1)), and personally inflicting great bodily injury (§ 12022.7, subd. (a)). In return, the district attorney agreed to a stipulated sentence of 26 years and to dismiss all other charges and enhancements. Porter's change of plea form indicates that he entered his plea freely and voluntarily, he understood he was giving up his constitutional rights including the right to present evidence on his behalf and to have the court subpoena his witnesses, and he understood the consequences of entering a guilty plea.
The trial court questioned Porter before accepting his guilty plea. In response to specific questions, Porter indicated he had an opportunity to review the change of plea form with his attorney, he understood the form and had no questions about it, he understood he was giving up his constitutional rights, he understood the plea bargain, he discussed all the facts with his attorney, he was satisfied with his attorney's representation, and he entered into his plea freely and voluntarily. The court found Porter made a knowing, intelligent waiver of his constitutional rights knowing the ramifications of the plea, and accepted Porter's guilty plea.
Porter appeared in court three additional times on November 17, December 3, and December 21, 2009. At no time did Porter assert at these hearings that his defense investigator had failed to interview witnesses willing to clear his name as the shooter or that he wanted to withdraw his plea. Eventually, his sentencing hearing was set for February 19, 2010.
At some point before his sentencing hearing, Porter wrote an undated letter to the court asking to withdraw his plea. He claimed he had given his defense investigator the names of two persons who witnessed the crime and his arrest who would have exonerated him as the shooter, but the investigator failed to interview them. He claimed he had asked his attorney to postpone the matter so the investigator could interview the witnesses, and when the attorney followed up, the investigator lied, telling his attorney he had no other witnesses to contact.
The Sentencing Hearing
On February 19, 2010, Porter was present for sentencing. At the beginning of the sentencing hearing, the court stated it had reviewed Porter's letter and asked whether there was any legal cause as to why sentencing should not proceed. Allen Bloom, Porter's retained attorney, responded yes, and advised the court that his client sought to withdraw his plea and that Porter wished to make a statement in that regard.
The court swore Porter in, explaining it needed to do so if Porter was "going to provide evidence in his motion...." Under oath, Porter stated he was dissatisfied with his defense investigator's performance for failing to interview certain witnesses as he had requested. He claimed that, on the day of trial when he entered his guilty plea, these witnesses called his mother and sister to ask when they would have to appear at his trial. Porter further claimed that he was "going through this whole process thinking and believing they are going to be there for trial[, ]" but when he examined his witness list, they were not listed. When asked how these events affected the voluntariness of his guilty plea as he was aware of all this information, Porter responded that he was scared to lose at trial without those witnesses. The court asked why he failed to mention the issue to attorney Bloom so that Bloom could have relayed that information to the court when they negotiated entry of his plea. Porter responded that he asked the investigator if they could request a postponement, and the investigator replied that he needed to talk to witnesses. Porter stated he told Bloom about the conversation and Bloom contacted the investigator, but the investigator said there were no other witnesses left to interview and there was no reason to postpone. Porter claimed the investigator had lied because there were four or five other witnesses that were not interviewed.
At this point, the court "in an abundance of caution" believed it incumbent to advise Porter of the attorney-client privilege attaching to his communications with Bloom about his plea and trial strategy, and directed Bloom to do so. The court noted Porter could waive that right and then the court would question him further, or he could assert that right and not be required to disclose any confidential communication. After an unreported conference, Bloom stated he had advised Porter about his attorney-client privilege, but requested the court further advise Porter and ask him directly whether he wanted to waive his privilege. The court advised Porter as to the attorney-client privilege and the fact his letter and statements could constitute an implied waiver of that privilege, telling Porter the court and counsel would honor his decision. It then asked Porter if he wished to waive or assert the privilege. Porter elected to assert it.
The court then inquired about Porter's responses to questions asked during his change of plea hearing. Porter conceded he had answered in the affirmative when asked whether he had an opportunity to read and consider the change of plea form. He could not recall stating that he had no questions about the change of plea form or answering in the affirmative when asked whether he had been advised of his constitutional rights and whether he understood that he was waiving those rights. Porter conceded he had agreed to a 26-year determinate term as opposed to an indeterminate term when he signed the change of plea form. He acknowledged he never said anything to the court or attorney Bloom indicating that he did not want the deal, and Bloom never indicated to the court that Porter did not want the deal.
After allowing Porter to be heard and the People to cross examine him, the court denied Porter's motion to withdraw his plea. The court explained: "There is absolutely insufficient evidence to suggest that Mr. Porter was under the influence at the time that he entered the plea. There was nothing to indicate that during the questioning process. There's nothing to indicate that he was not fully aware of the parameters of this particular deal and the benefits that would be achieved by getting a determinant term and this amount of time. There were numerous conferences held with Mr. Bloom and [the district attorney]. We discussed this at length. The case was proceeding as it was going the [sic] trial, and then we had the discussions with regard to potential settlement. It was fully negotiated on both sides. There's absolutely nothing to suggest that Mr. Porter's plea was not free and voluntary."
The court subsequently denied probation and committed Porter to the Department of Corrections and Rehabilitation for a total term of 26 years: the middle term of six years for the crime, ten years for the gang enhancement, and ten years for the gun enhancement. The court stayed the three-year enhancement for personal infliction of great bodily injury. The court ordered Porter to pay $10,000 in restitution fines and $18,608.96 in victim restitution. After obtaining a certificate of probable cause, Porter filed the present appeal.
DISCUSSION
I.
Contentions
Porter contends the trial court abused its discretion when it denied his motion to withdraw his guilty plea. Specifically, Porter argues that after he asserted his attorney-client privilege, the court should have asked attorney Bloom about his position on the merits of Porter's claim. He argues that additionally the court should have provided Bloom with an opportunity to investigate Porter's claim, and then allow him to either file a formal motion to withdraw the plea or provide reasons for refusing to do so. Porter contends that, if defense counsel refused to file the motion and the court determined there was a "colorable basis for the motion, " then the court should have conducted a hearing to determine whether substitute counsel should be appointed to prepare and file such a motion.
Porter finally argues we should "assume[]" his letter to the court expressing dissatisfaction with the investigator constituted an indirect complaint with respect to attorney Bloom and hold the trial court should have conducted a Marsden hearing on its own motion to determine whether substitute counsel should have been appointed to investigate Porter's claim. He asks this court to reverse the judgment and remand the matter to the trial court so that defense counsel can file a formal motion to withdraw the guilty plea, or alternatively, if counsel refuses to do so, appoint new counsel for that purpose. Other than referring to Marsden, supra, 2 Cal.3d 118, this latter point is without supporting authority.
People v.Marsden (1970) 2 Cal.3d 118 (Marsden).
Notwithstanding the deficiencies in Porter's briefing, as we will explain below, we conclude the record supports the trial court's implied finding that Porter did not in fact seek to discharge his retained attorney. We further conclude the trial court did not abuse its discretion in denying Porter's motion to withdraw his plea.
II.
Porter Did Not Request to Discharge His Retained Attorney
Marsden is inapplicable where defense counsel is retained, rather than appointed. (People v. Lara (2001) 86 Cal.App.4th 139, 152.) If defense counsel is retained, as here, all that is required for the court to appoint substitute counsel is " 'some clear indication ... that [the defendant] wants a substitute attorney.' " (Lara, supra, at p. 157, citing People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) Otherwise, the court has no duty to hold a hearing on its own motion to determine whether substitute counsel should be appointed when it witnesses a potential breakdown in the attorney client relationship. (Lara, at pp. 150-151.)
Here, Porter by his letter and testimony clearly indicated dissatisfaction with his defense investigator, but it is unclear at best whether this dissatisfaction was imputed to attorney Bloom and, most importantly, whether it amounted to a request for substitute counsel. Porter did not request substitute counsel during the three hearings at which he was present after entering his plea and before appearing for sentencing. At the sentencing hearing, Porter did not express dissatisfaction with Bloom's representation and he did not ask for a new attorney. Bloom presented Porter's oral motion to the court and advised Porter of his attorney-client privilege, and Porter elected to assert that privilege. Under the circumstances, the trial court was entitled to find, and we conclude it implicitly did find, that Porter was satisfied with his attorney's representation and did not seek to replace him. Such a finding is amply supported by this record, which discloses no indication Porter desired a different attorney. Under these circumstances, the trial court had no sua sponte duty to discharge Bloom and appoint substitute counsel.
III.
The Trial Court Properly Denied Porter's Motion to Withdraw his Guilty Plea
A. Governing Law and Standard of Appellate Review
Section 1018, governing the withdrawal of guilty pleas, provides: "On application of the defendant at any time before judgment... the court may, ... for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." A showing of good cause under this standard must be supported by clear and convincing evidence. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval); People v. Weaver (2004) 118 Cal.App.4th 131, 145; People v. Wharton (1991) 53 Cal.3d 522, 585.) " ' "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]" [Citation.] "The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." ' " (Sandoval, at p. 123; People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Wharton, at p. 585.)
" ' "When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]" [Citation.] "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." ' " (Sandoval, supra, 140 Cal.App.4th at p. 123 ; see also People v. Holmes (2004) 32 Cal.4th 432, 442-443 [abuse of discretion standard]; People v. Brown (1973) 9 Cal.3d 679, 686 [same], disapproved and superseded by statute on other grounds as stated in People v. Mendez (1999) 19 Cal.4th 1084, 1092-1093, 1103-1104.) Further, "a reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
In order to disturb the court's denial of Porter's motion under these principles, we would have to conclude its ruling was arbitrary or capricious, or that it " ' " 'exceeded the bounds of reason, all of the circumstances being considered.' " ' " (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
B. Analysis
Porter relies primarily on two cases: People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio) (disapproved on other grounds in People v. Johnson (2009) 47 Cal.4th 668, 681-685) and People v. Brown (1986) 179 Cal.App.3d 207, 215 (Brown). In Osorio, the defendant had pleaded guilty to transportation, sale, or furnishing of heroin in return for dismissal of the remaining charges. (Osorio, at p. 185.) At the defendant's sentencing hearing, the court reviewed the probation officer's report describing the sales transaction and asserting that Osorio was the principal seller. (Ibid.) Osorio objected to this assertion, contending that he was merely providing transportation for the drug dealer, and that he was not the dealer himself. (Id. at p. 185 & fn. 1.) In light of the information in the report, Osorio stated that he wished to withdraw his guilty plea. (Id. at pp. 185-186.) His counsel, however, refused to make the motion due to the potential for a vastly increased maximum sentence upon conviction of all of the original counts. (Id. at p. 186.) Osorio told his defense attorney he did not understand what he was pleading to when he entered the plea, and defense counsel acknowledged to the court that if Osorio's claim was true, then there would be grounds to withdraw the plea. (Id. at p. 186.)
The trial court subsequently sentenced Osorio, but the Court of Appeal set aside the judgment for the limited purpose of permitting the defendant to make a motion to withdraw his plea of guilty. (Osorio, supra, 194 Cal.App.3d at pp. 186, 189.) The Osorio court held that in light of counsel's representation to the trial court that there was a "colorable basis" for the motion to withdraw the plea, counsel had provided ineffective assistance by refusing to file the motion. (Id. at p. 183.)
In reaching its decision, Osorio distinguished People v. Mesa (1985) 174 Cal.App.3d 58 (Mesa). Mesa had pleaded guilty to felony burglary before a magistrate, and, at the sentencing hearing in superior court, he orally requested the case be remanded to the magistrate for consideration of a motion to withdraw the guilty plea on grounds he did not commit the crime. (Mesa, at pp. 59, 61) The superior court denied Mesa's request and the Court of Appeal affirmed, holding there was no justification for making an exception to the requirement of a written motion because there were no grounds to set aside the plea and Mesa had not suffered prejudice. (Id. at pp. 59, 62.)
Two aspects of the Mesa case were of "particular significance" to the Osorio court: "First, Mesa's counsel represented to the trial court that she had reviewed the transcript of the sentencing hearing, and that she found no legal grounds for the motion to withdraw the plea. Second, the trial court ascertained from defendant that his sole basis for wanting to withdraw the plea was that he did not commit the crime; when the court was considering the request for remand, Mesa specifically stated that he had understood the guilty plea when entered it." (Osorio, supra, 194 Cal.App.3d at pp. 187-188.)
Osorio distinguished Mesa on two points: First, Osorio's defense counsel specifically represented to the trial court that good grounds appeared for a motion to withdraw the plea. (Osorio, supra, 194 Cal.App.3d at p. 188.) Second, although "[t]he trial court reviewed the plea change form, on which Osorio originally had indicated his understanding of the various factors in pleading guilty[, ]... the [trial] court did not inquire whether and in what regard Osorio might have failed to understand the form itself. Further, the court did not inquire about Osorio's understanding of the relationship between his plea to 'transporting or selling' heroin and the court's ability to sentence based on findings that the crime was selling and not 'merely' transporting. [Fn. omitted.]" (Id.)
Instead, Osorio analogized to Brown, supra, 179 Cal.App.3d 207. Brown had entered pleas of no contest to charges of lewd and lascivious conduct with a child under the age of 14 and admitted he occupied a position of special trust to the victim, Brown's daughter. (Brown, at pp. 210-211.) At sentencing, Brown's appointed counsel advised the court that Brown wanted to withdraw his plea but that she would not make the motion on his behalf because she did not believe there was any legal basis for the motion. (Id. at p. 211.) The trial court allowed Brown to speak in his own behalf, since defense counsel refused to speak for him. (Ibid.) Brown stated that he wanted to withdraw his plea because he was innocent and the truth would come out at trial, and he was not in the " 'right frame of mind' " when he entered the plea. (Ibid.) Brown explained: " '[A]t that time it was a death that had me shook up, and Miss DiPietro, my lawyer, was constantly over and over she didn't know how to go about this case the right way. She said my best interest. But my best interest is for the truth to come out[.]' " (Id. at p. 213.) The court denied Brown's motion to withdraw the plea, finding nothing occurred that would require a setting aside of the pleas entered. (Id. at p. 213.)
On review, the Brown court observed that, although defense counsel represented to the trial court there was no legal basis to file a withdrawal motion, the motion would not have been frivolous nor would it have compromised "accepted ethical standards." (Brown, supra, 179 Cal.App.3d at p. 216.) "The Brown courtheld that the right to seek to withdraw a guilty plea implicated the defendant's fundamental rights to a jury trial and to testify in his own behalf. Accordingly, the decision to seek such withdrawal was solely the defendant's; his counsel could provide guidance and advice but must ultimately acquiesce in defendant's decision [except when filing the motion would be frivolous or compromise "accepted ethical standards"]. [Citation.] The court further held that if counsel persisted in refusing to file the motion, the court should conduct a hearing to determine if substitute counsel should be appointed. [Citation.] The court remanded the case for a hearing on a properly presented motion to withdraw the plea, and for subsequent proceedings dependent on the outcome of the motion." (Osorio, supra, 194 Cal.App.3d at pp. 188-189, citing Brown, at pp. 215, 216.)
We distill from these cases that if defense counsel refuses to file a motion to withdraw a guilty plea where there is a colorable basis to file the motion — that is, it would not be frivolous nor compromise accepted ethical standards — then the court must hold a hearing on its own motion to determine whether, in its discretion, substitute counsel should be appointed to file the motion.
The present case is distinguishable from both Brown and Osorio. Here, the record does not show that defense counsel unequivocally refused to file a motion to withdraw Porter's guilty plea. To the contrary, it appears that unlike Brown, Bloom "acquiesce[d] in [Porter's] decision" (Osorio, supra, 194 Cal.App.3d at pp. 188-189), presented Porter's request to the court, and allowed the court to swear Porter in and question him as to his reasons for seeking to withdraw his plea. Bloom allowed Porter to set forth the basis for his motion to the court. He also advised Porter of his attorney-client privilege during the hearing as the court requested, asked the court to further advise Porter of his attorney-client privilege, and clarified a misunderstanding in Porter's testimony on Porter's behalf. On this record, it is not the case that Mr. Bloom refused to present Porter's motion to withdraw the plea.
Most importantly, even assuming Porter's defense counsel refused to file the motion, unlike either Brown or Osorio, there was no colorable basis to file a motion to withdraw Porter's guilty plea. The colorable basis in Osorio was that Osorio did not understand what he was pleading to when he entered the guilty plea because it suggests mistake or ignorance overcoming exercise of Osorio's free judgment. (Osorio, supra, 194 Cal.App.3d at p. 188.) The colorable basis in Brown was that a recent death and multiple visits by his defense attorney suggesting incompetent representation coupled with pressure from his attorney to accept the plea bargain resulted in Brown being "not in the right frame of mind" when he entered the guilty plea. (Brown, supra, 179 Cal.App.3d at pp. 211, 213.) These facts tend to suggest duress, another factor overcoming exercise of Brown's free judgment. Thus, in both cases, it would not have been frivolous to file a motion to withdraw the guilty plea.
Here, unlike in Osorio, the record does not show Porter was mistaken or ignorant of any facts that would prevent him from exercising his own free judgment at the time he entered the guilty plea. Porter claimed he was misled by his defense investigator to believe that certain witnesses, who could potentially exonerate Porter as the shooter, would be interviewed and present at trial to testify on his behalf. However, Porter asked his attorney to postpone the trial in order for the investigator to locate and interview these witnesses after his family told him that the defense investigator had not yet contacted these witnesses. On the day of trial, Porter checked the list of witnesses who would be called to testify at trial and saw that the assertedly exonerating witnesses were not on the list. Thus, Porter could not have been misled since he knew that his witnesses had not been interviewed and were not present to testify on his behalf before he entered the plea.
Moreover, there was no colorable basis to suggest Porter was operating under any other factor overcoming the exercise of his free judgment such as inadvertence, fraud, or duress, even though Porter testified at the sentencing hearing that he was scared to go to trial because he thought he would lose without the missing witnesses. The trial court found that Porter gave a knowing, intelligent waiver of his constitutional rights, and there was "absolutely nothing to suggest that Mr. Porter's plea was not free and voluntary[, ]" and we must adopt these factual finding if supported by substantial evidence.
Unlike the defendant in Brown, Porter did not allege that he was not in the right frame of mind when he entered the plea or that his defense counsel pressured him into accepting the plea bargain. Rather, the record suggests — and the trial court could reasonably find — Porter made a strategic decision, in light of the information before him and fearing a longer sentence, to accept the plea bargain instead of proceeding to trial or requesting a postponement to subpoena his witnesses. Prior to entering the plea, Porter acknowledged on his change of plea form that he was giving up the right to have witnesses subpoenaed on his behalf. Porter also knew that if he was scared to proceed to trial without the witnesses then he could ask the court to postpone the trial, as evidenced by the fact that he discussed the possibility of requesting a postponement with his defense investigator and attorney Bloom. Porter was present in court on three separate occasions between the change of plea hearing and the sentencing hearing, and he never claimed that he was frightened to the point that he did not exercise his free will. This is substantial evidence that Porter was not operating under duress or any other factor overcoming the free exercise of his judgment. We must uphold the trial court's finding in this regard.
We believe Mesa, supra, 174 Cal.App.3d 58 provides a closer analogy. Mesa specifically stated to the court that he had understood the guilty plea when he entered it, and thus the court concluded there were no grounds to set aside the plea and Mesa suffered no prejudice. In the present case, Porter indicated on his change of plea form that he entered his plea freely and voluntarily, he understood he was giving up his constitutional rights, including the right to present evidence on his behalf and to have the court subpoena his witnesses, and he understood the consequences of entering a guilty plea. When questioned before entering his plea, Porter indicated that he had an opportunity to review the change of plea form with his attorney, understood the form, had no questions about the form, understood he was giving up his Constitutional rights, understood the plea bargain, discussed all the facts with his attorney, was satisfied with his attorney's representation, and entered his plea freely and voluntarily. Thus, the absence of a colorable basis for the motion to withdraw the guilty plea requires a similar disposition of the present appeal.
In sum, there was no colorable basis suggesting mistake, ignorance, or any other factor overcoming the free exercise of Porter's judgment, to file a motion to withdraw Porter's guilty plea. It would have been frivolous for defense counsel to file the motion, and he was not compelled to do so. Accordingly, the court was not under a duty to hold a hearing to determine, in its discretion, whether substitute counsel should have been appointed to file the motion. Therefore, we conclude the trial court did not abuse its discretion in denying Porter's motion to withdraw the plea without holding a hearing to determine if substitute counsel should be appointed to file a formal motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.