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P. v. Quiroga










Filed 4/3/17 P. v. Quiroga CA1/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
ARMANDO QUIROGA,
Defendant and Appellant.


A149336

(Mendocino County
Super. Ct. Nos.
SCUKCRCR 1684543
SCUKCRCR 1684971


In case number SCUKCRCR 1684543 (hereinafter case number 1684543), the Mendocino County District Attorney filed an information charging defendant Armando Quiroga with the felony offenses of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and possession of marijuana for sale (Health & Saf. Code, § 11359), with a related allegation that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
In case number SCUKCRCR 1684971 (hereinafter case number 1684971), the Mendocino County District Attorney filed a criminal complaint charging defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)); manufacture of concentrated cannabis (Health & Saf. Code, § 11379.6, subd. (a)), with a related allegation that he had suffered a prior felony conviction of Health and Safety Code section 11352 (Health & Saf. Code, § 11370, subd. (a)); and possession of marijuana for sale (Health & Saf. Code, § 11359), with related allegations that he had suffered a prior felony conviction of Health and Safety Code section 11352 (Health & Saf. Code, § 11370, subd. (a)), and a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The criminal complaint was later amended to include a charge of possession of methamphetamines while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)).
During the course of the proceedings, defendant filed three separate motions to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Each motion was denied.
On May 20, 2016, at a change of plea proceeding to resolve the charges in case number 1684971, defendant pleaded no contest to possession of methamphetamines while armed with a loaded firearm. On July 14, 2016, at a change of plea proceeding to resolve the charges in case number 1684543, defendant pleaded no contest to possession of marijuana for sale and possession of a firearm by a felon. All other counts and allegations in both cases were dismissed. On August 10, 2016, pursuant to the plea agreements, the trial court sentenced defendant to an aggregate term of three years and four months in state prison, consisting of two years (mitigated term) for possession of methamphetamines while armed with a loaded firearm, plus consecutive terms of four months (one-third the middle term) for possession of marijuana for sale and four months (one-third the middle term) for possession of a firearm by a felon. Defendant received presentence credit for 163 actual days in custody, plus 162 days local conduct credit, for a total of 325 days. Defendant filed a timely notice of appeal and requested a certificate of probable cause, which was granted by the trial court.
Defendant’s appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. In his notice of appeal, defendant challenges the denial of a motion to suppress evidence under Penal Code section 1538.5. However, the record shows that only defendant’s co-defendant made a suppression motion, which defendant’s trial counsel explicitly declined to join. Because defendant’s trial counsel never moved to suppress evidence, “facts necessary to a determination” of any issues relative to such a motion “are lacking,” thereby precluding any appellate review. (People v. Cudjo (1993) 6 Cal.4th 585, 627.) In his request for a certificate of probable cause, defendant challengesthe denials of his Marsden motions, and, further contends he was deprived of effective assistance of trial counsel. The record does not reflect any abuse of discretion or error in the denials of defendant’sMarsden motions. For each motion, the trial court held an in camera hearing and extensively questioned both defendant and his trial counsel before giving its reasons for denying the motion. Finally, any appellate claim of ineffective assistance of trial counsel must be rejected. In his certificate of probable cause defendant does not set forth sufficient facts from which we could find that for any challenged act or omission, there simply could be no satisfactory explanation for counsel’s conduct. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Thus, defendant’s claim of ineffective assistance of trial counsel “is more appropriately decided in a habeas corpus proceeding. [Citations.]” (Ibid.) As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellate counsel has informed defendant of his right to file a supplemental brief and he has not filed such a brief. Based on our own independent review of the record, we find no legal error or abuse of discretion in the court’s rulings and orders.
DISPOSITION
The judgment is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.






People v. Armando Quiroga, A149336

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