P. v. Rivera

Filed 6/25/07 P. v. Rivera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

This is defendants second appeal in this matter. In 2004, pursuant to a plea agreement, defendant, represented by counsel, pleaded guilty to one count of second degree murder (Pen. Code, 187) in exchange for a promised sentence of 15 years to life in state prison and the dismissal of the remaining two counts of murder, one count of attempted murder, and the enhancement allegations. (See People v. Rivera Nov. 30, 2005, E037237) [nonpub. opn.] [pp. 2, 4].) Thereafter, in accordance with the plea agreement, the trial court dismissed the remaining allegations and enhancements and sentenced defendant to the promised sentence of 15 years to life in state prison. (Id. [pp. 2, 5].)

Defendant subsequently appealed, arguing the trial court erred in failing to hold a hearing on his written request to withdraw his guilty plea based on ineffective assistance of counsel. (See People v. Rivera (supra, E037237) [p. 2].) On November 30, 2005, this court reversed and remanded with directions to the trial court for the limited purpose of holding a hearing on defendants request to withdraw his guilty plea. (Id. [pp. 2, 11].)

On remand, defendants appointed trial counsel filed a motion to withdraw the guilty plea based on ineffective assistance of counsel, pressure into entering the plea agreement, and the ability to present witnesses for the defense. The People filed an opposition on July 25, 2006, arguing defendant had failed to show good cause for withdrawing his guilty plea by clear and convincing evidence.

Following a contested hearing on July 28, 2006, at which no witnesses, including defendants prior trial counsel who represented him at the time of the taking of the plea, were called, the trial court denied defendants motion to withdraw the guilty plea. The trial court stated, The motion is going to be denied. And I actually wrote out my opinion, so Im going to read it here for the record because I spent a considerable amount of time looking at the court file, looking at the minute orders, looking at the motions filed by Mr. Atherton [defendants prior trial counsel]. I had an opportunity to reread the transcript involving [defendants] plea as well as pronouncement of judgment. I also had an opportunity to review a transcript dated March 5th, 2004, in which Mr. Atherton was making a request for a motion to sever the charges as well as discovery, and I think it is very important to understand that Mr. Atherton had a great knowledge of the facts in presenting his arguments to the Court.

The trial court thereafter summarized the standard of review in withdrawing guilty pleas and claims of ineffective assistance of counsel and found that defendant had failed to establish those standards. The court determined that defendants prior trial counsel was within the range of competence demonstrated by other attorneys in criminal cases, noting the appearances counsel made on the case, as well as the numerous motions and requests for appointment of experts and an investigator filed. The court further noted that counsel had indicated that he was more than prepared to go to trial and that it appeared he had a tremendous grasp of the facts of the case and the strengths and weaknesses of the charges and allegations filed against [defendant].

The court also found that there was no evidence in the record to support defendants blanket assertion that he was pressured into pleading guilty or that he was coerced in accepting the plea bargain agreement. The court also rejected defendants claims that because of the airing of a court proceeding on Fox News he was denied the ability to present witnesses for the defense, noting that defendant had this information before he entered into his guilty plea and that there was no indication in the record to support his position that the witnesses had disappeared. The court also rejected defendants claims that his counsel was ineffective for failing to transfer the case because the trial court was prejudiced against defendant, pointing out that defendant had failed to offer no evidence in support of this claim. In summary, the court found that counsel had provided more than competent assistance to defendant and that defendant had failed to show good cause in withdrawing his guilty plea by clear and convincing evidence.

On September 8, 2006, defendant filed a notice of appeal from the denial of his motion to withdraw plea of guilty. No certificate of probable cause was requested or issued.

Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his three-page supplemental letter brief, defendant sets forth one purported arguable issue relating to whether the trial court erred in denying his motion to withdraw his guilty plea based on ineffective assistance of counsel and the courts prejudice against him. We have reviewed the entire record, the contentions both of counsel and defendant, and have not found any arguable issues. The record does not support defendants contention that the court erred in denying his motion to withdraw his guilty plea based on ineffective assistance, that he was pressured into pleading guilty, or that the trial court was prejudiced against him. Moreover, his claims are foreclosed by his waiver of his right to appeal and his failure to obtain a certificate of probable cause. (People v. Rivera (supra, E037237) [p. 4] [[d]efendant. . . agreed to give up his right to appeal from the conviction and judgment in exchange for the substantial benefit of his plea bargain].) (People v. Pannizon (1996) 13 Cal.4th 68, 76; People v. Mendez (1999) 19 Cal.4th 1084, 1094, 1098; People v. Hunter (2002) 100 Cal.App.4th 37.)

We have now concluded our independent review of the record and find no arguable issues.

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

GAUT

J.

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