Filed 1/29/19 P. v. Ghane CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from judgments of the Superior Court of Orange County, Michael J. Cassidy and Cheri T. Pham, Judges. Affirmed.

Richard Power, under appointment by the Court of Appeal; Esmail Ghane, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Esmail Ghane, an intelligent and educated man, has fought a long and arduous fight for reversals of convictions and denials of motions. We have consolidated these two appeals, the latest in that battle, because they raise similar issues and he has filed identical briefs in them after his appointed attorney filed a Wende notification informing us he could find no arguable issues in either case.

In an earlier iteration of Mr. Ghane’s battle, we described the history of the case as “long, tortuous and torturous.” We noted that the many appeals have stemmed “from a six-count felony complaint filed at the beginning of the century [and the case] has wended its way through several trial judges, several psychiatrists and several hearings . . . .” We provide below the precis of that history that we outlined the last time appellant was before us, in 2015.

“The trial of defendant and appellant Esmail Ghane’s felonies was delayed when he was found incompetent to stand trial in 2000. He was found competent again in 2001, and charges were reinstated. He was represented by counsel and pled guilty. He was placed on probation. In 2004, Ghane was charged with violating his probation, and again his competency came into question. He was found competent and sentenced to four years in state prison for the probation violation and the felonies which generated it.

“Ghane then began a series of attempts to withdraw his plea, which were denied. He attempted appeals and writs from those actions, but lost each time, the last being in 2005.

“Then Ghane filed the action which engendered this appeal. Denominated “Motion to Withdraw Guilty Plea; Replace it with Not Guilty Plea, and to Acquit,” it was denied by the trial court on January 3, 2014. The trial court’s reason for denying it was that it simply had no jurisdiction to hear either a motion for withdrawal of plea nor a writ of coram nobis more than a decade after the fact. And a writ of coram nobis cannot be used as a seriatim attempt to prevail where a nonstatutory motion to dismiss would be untimely. Nor can it be filed in the trial court after the matter has been affirmed on appeal. (People v. Kim (2009) 45 Cal.4th 1078.) He appealed, and the trial court issued him a certificate of probable cause.

“We appointed counsel to represent Mr. Ghane on that appeal. Counsel filed a brief which set forth the procedural facts of the case (the facts of the crimes themselves are irrelevant because the argument is solely directed at Mr. Ghane’s plea and representation). Counsel did not argue against her client, but advised us there were no issues to argue on his behalf.” (People v. Ghane (Mar. 6, 2015, G049749 & G049752) [nonpub. opn.].)

All of this parallels what has happened in these cases. Appellate counsel has again been unable to find any issues he considered arguable. His brief reflects an exemplary familiarity with and analysis of a long and convoluted record. Under the law, this puts the onus on us to review the record and see if we can find any issues that might result in some kind of amelioration of Mr. Ghane’s lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search is not for issues upon which Mr. Ghane would prevail, but only issues upon which he might possibly prevail.

But this case differs from Mr. Ghane’s earlier cases because this time he has chosen to assist our search for issues with his own brief, a compendious 156-page opus captioned “Aplt has had Ineffective Assistance of Counsels from 6/2000 to Date Including ADI & Current Appellate Counsel, Richard Power (RP) Is Ineffective, Incompetent, Acts as Police, Prosecutor, Judge, Executioner, Adversarial, Closed Minded, Unable to Comprehend, Unable to Listen & Hear, Just talking Repeating False Records, Waste Aplt Respectfully & Humbly REQUEST New Appointed Counsel Whom Can Represent Aplt’s Interests Correctly, Not Adversary as RP [¶] Aplt Requests to Set Aside RP’s Ineffective Wende Brief THEREOF; DECLARATION OF ESMAIL GHANE APLT DESIGNATE & SUBMITT THE ENTIRE SUPERIOR, APPELLATE, SUPREME COURTS OF CALIFORNIA AS Aplt’s Supplemental Opening Brief, In Addition to This BRIEF, Alleged Illegal Charges, Illegal Plea & PV Were False, Fabricated Ineffective Counsel is Worse than No Counsel At All, RP & ADI Just Simply Are There to DENY Aplt Real Due Process & Assume Guilty.” [Boldface omitted.]

The brief comprises a thorough catalogue of Mr. Ghane’s complaints going back two decades. It is an impressive compilation of assertions and contentions, the main thrust of which is that Mr. Ghane has never been properly represented by counsel and that failure of representation has combined with judicial failure to deprive him of his constitutional rights.

But his briefing suffers from at least two flaws: It is largely concerned with matters that have already been reviewed and rejected through Mr. Ghane’s earlier trial, motions, and appeals, and it is before us now as an appeal from unsuccessful attempts to reargue those matters in the superior court.

Mr. Ghane has filed a half-dozen motions for declaration of factual innocence. Each time he loses, he files another. We have two appeals before us that result from him losing motions for declarations of factual innocence – characterized variously as petitions for writs of habeas corpus or coram nobis, motions for destruction of records, and otherwise-asserted complaints that his original plea in 2000 and his probation violation in 2004 were “false, fabricated.”

These challenges have all been rejected at every level including this one, and the cases before us are nothing more than reiterations – passionate and painstaking reiterations, but reiterations all the same – of the contentions Mr. Ghane has been making for almost two decades.

We are not allowed to reopen cases just because an aggrieved party has seen fit to put more effort into the matter and give it a new name and case number. Once a decision has been made, it becomes the law of the case, and we cannot undo it based on nothing but more stentorian argument.

All of the contentions made by Mr. Ghane have been addressed in earlier proceedings which have either been unsuccessfully appealed or allowed to stand without appeal. They cannot be reexamined here without new facts. Mr. Ghane offers no new facts other than the assertion his newest attorney is inadequate.

But that issue is moot – as is his request that counsel be removed and replaced – because the matter is now before us and under Wende, we must scour the record for an issue on which we think Mr. Ghane might have a chance at success. If we cannot find such an issue, appointing new counsel would be an idle act.

We can find no such issue. What Mr. Ghane regards as the trial court’s “threatening and abusive behavior” appears to be no such thing to us. And the fact that judges and attorneys involved in the case later developed professional problems is not related by Mr. Ghane to any specific facts in his case. The innuendo is there. But the assertions that flawed people handled his case so it must include flaws is not a syllogism that holds up under examination, and it is offered too late and with too little factual support in this court.

This is the third time we have appointed counsel for Mr. Ghane so he could appeal an unsuccessful trial court effort. Each time they have found nothing they could do, and have filed a Wende brief. Even the most cynical observer of the appellate system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple fact is that counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.

Three different attorneys have told Mr. Ghane they can find nothing objectionable in the way his cases were handled. And now we must say that we are, also for the third time, unable to find anything on which to hang an appellate hat. We regret that Mr. Ghane laments, “This case has been through CA Supreme Court twice and through U. S. Supreme Court as it will have to go through again.” We do not think any other court will be able to help him any more than we have. But we cannot find an arguable issue in this record.

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.