P. v. Chadwick

Filed 10/10/06 P. v. Chadwick CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

In San Diego County Superior Court case No. SCD177093 (case No. SCD177093), on September 23, 2003, Andy D. Chadwick entered a negotiated guilty plea to failing to register as a sex offender (Pen. Code, § 290, subd. (g)(2).)^[1] He admitted a prior strike (§ 667, subds. (b )-(i)) and serving a prior prison term (§§ 667.5 subd. (b), 668). The court struck the prior strike, suspended imposition of sentence, and placed him on probation for three years, including a condition he obey all laws. It revoked probation on June 2, 2005, after the preliminary hearing in San Diego County Superior Court case No. SCD190746 (case No. SCD190746). In case No. SCD190746, on September 13, 2005, Chadwick entered a negotiated guilty plea to furnishing a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) He admitted a prior strike. In case No. SCD190746, the court sentenced him to prison for a stipulated six years: double the three-year lower term for furnishing a controlled substance with a prior strike. It imposed a concurrent term in case No. SCD177093. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)^[2]

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues whether: (1) Chadwick was advised of his rights and the consequences and whether he waived his rights before pleading guilty; (2) there is evidence in the record that Chadwick was denied effective assistance of counsel; (3) there is evidence in the record that Chadwick was induced to enter the guilty plea through duress; (4) there is a factual basis to support the guilty plea; (5) the trial court erred in imposing the sentence in case No. SCD170093; and (6) the sentence is in accord with the plea agreement. We granted Chadwick permission to file a brief on his own behalf. He has responded. In a letter filed June 7, 2006, which we treat as a supplemental brief, Chadwick contends he is not guilty of selling drugs. However, as noted above, because Chadwick entered a guilty plea, he cannot challenge the facts underlying the conviction. (§ 1237.5; People v. Martin, supra, 9 Cal.3d at p. 693.) In a letter received on June 9, Chadwick requested a 30-day extension to file a supplemental brief. We granted him until August 10 to do so. In a letter received on June 12, Chadwick contends he is not guilt of selling drugs, was imprisoned for six years because of racial discrimination, because he was taking medication he was unaware of what he was doing when he entered the guilty plea, and his trial attorney made him enter the guilty plea. Regarding alleged racial discrimination, nothing in the record supports Chadwick's claim. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Chadwick wishes to pursue this issue, he must do so by a habeas corpus petition filed in the trial court. Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Regarding Chadwick's claim that he entered the guilty plea because of his attorney's coercion, defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; People v. Pope (1979) 23 Cal.3d 412, 425.) The record sheds no light on Chadwick's claim that his guilty plea was coerced. "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Chadwick also contends he was placed in double jeopardy because he was imprisoned because of his past. On the conviction in case No. SCD190746, the court doubled the base term because Chadwick had a prior strike. The three strikes law does not place a defendant in double jeopardy. (People v. Sipe (1995) 36 Cal.App.4th 468, 489.) In any case, the validity of a stipulated sentence is not reviewable absent a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) Chadwick stipulated to the six-year sentence.

We requested additional briefing on the question of whether the trial court erred in imposing the prison term in case No. SCD177093. Chadwick argues the matter must be remanded because the record does not reflect that the trial court was aware it had the power to reinstate or terminate probation in case No. SCD177093 after revoking probation rather than imposing the concurrent prison term. (See People v. Medina (2001) 89 Cal.App.4th 318, 323.) However, absent any evidence to the contrary, it is presumed the court properly exercised its legal duty. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) We thus presume that the trial court was aware it had authority to reinstate or terminate probation in case No. SCD177093 after revoking probation in that case and chose to impose the concurrent term.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Chadwick on this appeal.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.

^[2] Because Chadwick entered guilty pleas he cannot challenge the facts underlying the convictions. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.