P. v. Pickering

Filed 7/16/07 P. v. Pickering CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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By information filed September 6, 2006, it was alleged appellant committed attempted second degree robbery (Pen. Code, 212.5, subd. (c), 664)^[1] and that he had suffered a prior felony conviction that qualified as a strike^[2]and as a prior serious felony conviction ( 667, subd. (a)), and that he had served four separate prison terms for prior felony convictions ( 667.5, subd. (b).)

On October 27, 2006, pursuant to a plea agreement, appellant pled no contest to the robbery charge, admitted the strike allegation and waived the preparation of a presentence report. The court imposed a prison term of four years, consisting of the two-year midterm on the robbery conviction, doubled pursuant to the three strikes law ( 667, subd. (e)(1), 1170.12, subd. (c)(1)).

On December 4, 2006, appellant filed a notice of appeal, in which he requested the court issue a certificate of probable cause ( 1237.5) The following day, the court granted that request.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself, in response to this courts invitation to supplemental briefing, has submitted a brief in which he argues, as best we can determine, that (1) he was denied his constitutional right to the effective assistance of counsel, and (2) his plea was neither knowing, voluntary nor intelligent. We will affirm.

FACTS^[3]

City of Delano Police Officer Jose Madrigal testified to the following: He was on patrol on August 14, 2006, at approximately 12:30 a.m., when he observed two persons running across Highway 99. Because one of these persons, later identified as Manolo Otero, kept looking over his shoulder at the other person, later identified as appellant, it appeared to the officer that appellant was chasing Otero. Officer Madrigal stopped his vehicle and made contact with Otero, at which point appellant also stopped running. Otero told the officer the following:

Otero was drinking a beer in a bar. He became uncomfortable when he saw appellant staring at him. Otero finished his beer and walked outside. Appellant followed him, caught up with Otero and told [Otero] to give him all his money. At that point, Otero began running.

DISCUSSION

As best we can determine, appellants claim of ineffective assistance of counsel consists of three parts. First, he argues his trial counsel was ineffective in failing to attempt to establish the evidence was insufficient to support the strike allegation.

To prevail on a claim of ineffective assistance, a defendant must show both that counsels performance was deficient--it fell below an objective standard of reasonableness--and that defendant was thereby prejudiced. (People v. Cash (2002) 28 Cal.4th 703, 734.) On direct appeal, in order for a defendant to show deficient performance by counsel, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.) In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance unless there could be no conceivable reason for counsels acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229,1254.) Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.)

Appellant makes no showing that the evidence was insufficient to support the strike allegation. So far as the record reveals, it is possible counsel reasonably concluded that no basis existed for challenging the strike allegation. Therefore, appellant has not met his burden of establishing counsel was ineffective in failing to challenge the strike allegation.

Appellant also argues that his counsel failed to conduct an adequate investigation of possible defenses.

Our Supreme Court has made clear that a claim of ineffective assistance of counsel based on a failure to investigate fails where there is no showing that a more thorough investigation would have uncovered favorable evidence. (In re Marquez (1992) 1 Cal.4th 584, 602.) To make that showing, a defendant must establish the nature and relevance of the evidence that counsel failed to present or discover. (In re Sixto (1989) 48 Cal.3d 1247, 1257.)

Appellant does not specify what evidence counsel might have uncovered through investigation. Accordingly, this claim also fails.

The third basis of appellants claim of ineffective assistance of counsel is the contention that his counsel coerced him into pleading. There is nothing in the appellate record to support this claim. Therefore, it too is without merit. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 [[t]he scope of an appeal is, of course, limited to the record of the proceedings below].)

Finally, as best we can determine, appellant challenges the validity of his plea on the grounds that defense counsel and the prosecutor framed [him] with intimidation tactics, and therefore his plea was not knowing, voluntary or intelligent. (See Bradshaw v. Stumpf (2005) 545 U.S. 175, 183 [125 S. Ct. 2398, 2405] [plea of guilty or no contest is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences ].) There is nothing in the record to support this claim. Therefore it too fails.

We have independently reviewed the record and based on that review we have concluded that appellants arguments are without merit and that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.

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

^[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3] The factual statement is taken from reporters transcript of the preliminary examination.