P. v. Jankowicz
Filed 2/23/07 P. v. Jankowicz CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW WALTER JANKOWICZ, Defendant and Appellant. | D048931 (Super. Ct. No. SCE246141) |
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed.
The People charged Matthew Walter Jankowicz with 28 counts of lewd and lascivious conduct with more than one child under the age of 14 years (Pen. Code, 288, subd. (a), 1203.066, subd. (a)(7), 667.61, subds. (b), (c), & (e)),[1]three counts of exhibiting harmful matter to a minor with the intent to arouse sexually ( 288.2, subd. (a)), 36 counts of committing a lewd act on a child 14 or 15 years of age ( 288, subd. (c)(1)), and 11 counts of sodomy with a minor ( 286, subd. (b)(1)). Jankowicz entered guilty pleas to two counts of lewd and lascivious conduct with more than one child under the age of 14 years and one count of committing a lewd act on a child 14 or 15 years of age. The court denied a motion to withdraw the guilty pleas and sentenced him to prison for a stipulated sentence of 32 years to life: consecutive terms of 15 years to life on each conviction of lewd and lascivious conduct with more than one child under the age of 14 years and two years on the conviction of committing a lewd act on a child (one-third the middle term). The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b) (former rule 30(b).)
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. Jankowicz was a friend of the victims' family. The victims are three brothers. Beginning when two of the victims were 12, Jankowicz engaged in sexual activity with them. When the third brother was 15, Jankowicz engaged in sexual conduct with him. Because Jankowicz 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 in greater detail.
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: (1) whether Jankowicz's guilty pleas were constitutionally valid; (2) whether the trial court abused its discretion in denying Jankowicz's motion to withdraw the guilty pleas; and (3) whether the trial court abused its discretion in imposing the 32-years-to-life sentence.
We granted Jankowicz permission to file a brief on his own behalf. He has responded. Jankowicz contends his guilty pleas were unconstitutional, the trial court erred in denying his motion to withdraw the guilty pleas, and that he was denied effective assistance of trial counsel.
As mentioned above, the trial court denied a certificate of probable cause. 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.) Nor, absent a certificate of probable cause, can Jankowicz challenge on appeal the denial of his motion to withdraw the guilty plea. ( 1237.5; In re Chavez (2003) 30 Cal.4th 643, 651.) In the contention that he was denied effective assistance of trial counsel, Jankowicz claims his attorney told him he would challenge a confession and that Jankowicz would prevail at trial. However, when Jankowicz later told his attorney he did not have money, his attorney negotiated a plea agreement and through threats, overbearing and misrepresentation of the consequences, urged Jankowicz to enter the guilty pleas.
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.) The record before this court lacks information on Jankowicz's claims regarding his trial counsel's conduct. "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.)
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 Jankowicz on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code.
