P. v. Adams

Filed 4/17/09 P. v. Adams CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

James Darrell Adams, the defendant herein, pleaded no contest to vehicle theft (Veh. Code,  10851, subd. (a)) with a prior conviction for the same crime (see Pen. Code,  666.5, subd. (a)). Defendant admitted the truth of five of six enhancement allegations that he had been convicted of a felony for which he served a prior prison term. (Id.,  667.5, subd. (b).) The remaining allegation was dismissed. The trial court sentenced defendant to three years in state prison and ordered him to pay restitution to the victim and two monetary assessments for the administration of justice.

Defendant filed a motion to withdraw, on grounds of newly discovered evidence and ineffective assistance of counsel, his no contest plea. The trial court denied it. He appeals from the judgment on the ground that the court erred in so ruling. Counsel for defendant has filed an opening brief that states the case and facts but raises no issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant, as he is entitled to do, filed his own brief. We have reviewed the record and considered defendants arguments and will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

We derive the facts from a probation officers statement and other parts of the record. Defendant stole a Ford F450 heavy-duty flatbed or dump truck from James Griffith, Inc., General Construction. The probation officer stated, in a memorandum to the superior court, that a police report reflects [that] keys were in the vehicle and the vehicle was running and does not indicate what, if any, damage to the vehicle was sustained. The police report does indicate [that] the vehicle had to be towed, and therefore[] some amount of restitution will most likely be owed to the victim. The probation officer promised to follow up with any further information detailing the owners losses, and did so in a supplemental memorandum explaining that the owner incurred $4,986.02 in repair costs and $426.25 for restoring logos on the truck that defendant had spray-painted over. Total losses amounted to $5,412.27.

DISCUSSION

We have reviewed the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and find no basis under which defendant might be entitled to relief.

Defendant argues that the trial court should have granted his motion to withdraw his plea on grounds of ineffective assistance of counsel. In defendants view, the evidence was insufficient to sustain his conviction and effective counsel would have put the state to its burden to prove his guilt beyond a reasonable doubt rather than persuade defendant to plead no contest or, if it did not persuade him, acquiesce in his decision to do so.

Such a claim, when made by a defendant who has pleaded no contest, requires obtaining a certificate of probable cause under Penal Code section 1237.5. [A] defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court still must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea. [Citations.] A defendant who challenges the validity of such a plea on the ground that trial counsel rendered ineffective assistance in advice regarding the plea may not circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus. (In re Chavez (2003) 30 Cal.4th 643, 651.) In this case, however, defendant did obtain a certificate of probable cause and its wording, fairly construed, encompasses this claim. Accordingly, his claim is not procedurally barred and must be addressed on the merits.

A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) In addition, defendant claims one or more violations of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution, his Sixth Amendment right to a jury trial, and his constitutional right not to be subject to ex post facto laws (id., art. 1,  10, cl. 1).

To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Maury (2003) 30 Cal.4th 342, 389.) In sum, defendant must show that counsels action or inaction was not a reasonable tactical choice. (People v. Jones (2003) 30 Cal.4th 1084, 1105.) And he must do so on the record before us, to which we are limited on direct appeal even on an ineffective assistance of counsel claim. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)

Defendant is unable to meet these requirements. The underlying premises of his ineffective assistance of counsel claim are assertions that he attempted to rent, in good faith, a vehicle from a rental yard and was defrauded by the renter, who furnished him with an unauthorized vehicle. He further asserts that the state committed one or more violations of the Fourth Amendment to the United States Constitution in detaining and arresting him, and that errors in criminal procedure occurred in the course of the processing of his case. He argues that instead of acting on these purported circumstances his counsel exhibited disloyalty to him and failed to represent his interests. He also maintains that there was insufficient evidence to find true the prison-prior allegations and that effective counsel would have contested their truth.

Defendants ineffective assistance of counsel claim cannot be resolved on the record before us. If the record sheds no light on why counsel acted or failed to act as defendant asserts (and the record here does not), then unless counsel was asked for an explanation for counsels purported acts or omissions and failed to provide one (which did not occur), or unless there could not be a satisfactory explanation for the purported acts or omissions (a certainty that does not exist here), the claim on appeal must be rejected. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) The claim may be raised again in a habeas corpus petition. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

DISPOSITION

The judgment is affirmed.

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Duffy, J.

WE CONCUR.

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Bamattre-Manoukian, Acting P. J.

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McAdams, J.

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