P. v. Rodriguez

Filed 8/7/07 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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 Kings County. Lynn C. Atkinson, Judge.

Tami J. Buscho, 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.

-ooOoo-

On May 13, 2006, at approximately 5:00 a.m. appellant, Juan Ramon Rodriguez, broke a window to get into his ex-girlfriends apartment. Once inside, Rodriguez slapped his ex-girlfriend, pushed her to the ground, and began choking her. He then took out a fixed blade knife, walked to the bedroom where his ex-girlfriends boyfriend was and began swinging it at the boyfriend. When his ex-girlfriend attempted to stop him, he threw her into the closet, breaking the door. He then threw her on the ground in the hallway and began choking her again. Rodriguez told his ex-girlfriend that she was not going to call the police and ripped the telephone line from the wall before leaving.

Following a preliminary hearing on May 30, 2006, on June 13, 2006, the district attorney filed an information charging Rodriguez with one count each first degree burglary (count 1/Pen. Code, 459),^[1]assault with a deadly weapon (count 2/ 245, subd. (a)(1)), cutting a telephone line (count 3/ 591), battery on the parent of his child (count 4/ 243, subd. (e)(1)), brandishing a weapon (count 5/ 417, subd. (a)(1)), and vandalism (count 3/ 594, subd. (a)).

On September 22, 2006, as part of a negotiated plea Rodriguez pled guilty to cutting a telephone line and the assault charge after the prosecutor amended this charge to assault to by means of force likely to cause great bodily injury in exchange for a stipulated middle term of three years and the dismissal of the remaining counts. Additionally, after Rodriguez entered his plea and waived the preparation of a probation report the court sentenced him to the stipulated three-year term.

However, in a letter filed on April 20, 2007, Rodriguez contends: 1) his defense counsel did not point out critical issues to the court; 2) Rodriguez thought he would be eligible for probation because his counsel told him he would be; 3) he did not understand the charges or what went on at the change of plea hearing and simply did what his counsel told him to do; 4) he did not understand the courts statement that if he pled guilty he gave up the right to require the district attorney to prove his guilt beyond a reasonable doubt; 5) his defense counsel did not present a private investigators report which concluded the victims lied, and 6) his sentence is unfair and unreasonable.

Rodriguezs complaints relating to the performance of his defense counsel are not cognizable because they are based on facts that are outside of the record. (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].)^[2] Further, the transcript of the change of plea proceedings contradicts Rodriguezs contention that he did not understand the charges against him or that he would not receive a grant of probation. Rodriguezs plea agreement specifically provided for a three-year term. Additionally, during the change of plea proceedings Rodriguez never asked any questions or expressed any confusion regarding the courts admonishment that his plea would result in the court sentencing him to a three-year prison term. Moreover, when the court asked Rodriguez whether anybody had made any promises to get him to change his plea or whether his lawyer had told him anything different from what the court had explained to him, Rodriguez answered no each time. Further, we need not discuss Rodriguezs contention that his sentence is unfair and unreasonable because Rodriguez has not cited any part of the record or any authority in support of this contention. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed].)

Thus, following independent review of the record, we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

^* Before Vartabedian, Acting P.J., Gomes, J. and Dawson, J.

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

^[2]Rodriguezs request to relieve his appellate counsel, contained in his letter filed on April 20, 2007, is hereby denied.