P. v. Smith
Filed 6/21/07 P. v. Smith CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND SMITH, Defendant and Appellant. | 2d Crim. No. B191356 (Super. Ct. No. BA107120) (Los Angeles County) |
Raymond Smith appeals from the order denying his petition for writ of error coram nobis seeking an order vacating his conviction of unlawful sexual intercourse with a minor. (Pen. Code, 261.5, subd. (c).)[1] Smith was charged initially with two counts of forcible rape while acting in concert (Pen. Code, 261, subd. (a)(2), 264.1) with codefendant Donald L. Brewer. After Smith pleaded no contest to a felony violation of unlawful sexual intercourse with a minor, the court placed him on probation for five years. The court later terminated probation and dismissed Smith's conviction pursuant to section "1203.4 or 1203.4A" and "reduced [his conviction] to a misdemeanor."
We appointed counsel to represent Smith on this appeal. After examining the record, counsel filed an opening brief raising no issues and requesting that this court independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Smith later submitted a brief contending that he received ineffective assistance of counsel.
On January 3, 1995, Smith and four girls (16-year-olds T., N. and M., and 14-year-old F.) went to his apartment, where Brewer joined them. They talked, smoked marijuana, and drank some Hennessey. Later, F. went into a bedroom to talk with a third man. Smith entered and told the third man to leave the room. He left. When F. tried to follow him, Smith forced her to return to the bedroom. He started touching F.'s breasts, and she objected. He got on top of her. F. told him to get off. He did so, but told her to remove her clothes. She complied because she was afraid, recognizing "how big he is." Smith "stuck his penis in [her] vagina" for about five minutes. F. was unsure whether Smith ejaculated. The police arrived and banged on the door. Smith then stood, told F. to get dressed, and told her and the other girls to go into the other bedroom.
Smith's petition for writ of error coram nobis alleged that his plea in this case caused a substantial increase in the sentence he received for his federal convictions. He claimed that counsel's erroneous advice regarding the consequences of his plea induced him to plead no contest. On appeal, Smith claims that his counsel did not (1) inform him of medical reports concerning the alleged victims; (2) file a notice of appeal from the state conviction despite Smith's request that he do so; or (3) obtain a timely dismissal of Smith's state conviction. We disagree.
The medical reports would not have undermined the victims' testimony where neither victim claimed that her assailant ejaculated during intercourse. Smith neither established that counsel gave him bad advice, nor showed that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 59.) Before Smith entered a plea, he faced two charges of forcible rape while acting in concert, with a potential sentence of five to nine years each. ( 264.1, 261, subd. (a)(2).) There is not a reasonable probability that, but for counsel's incompetence, Smith "would not have pleaded [no contest] and would have insisted on going to trial." (Hill, at p. 59.) Smith presented no objective evidence to corroborate his claim that counsel failed to file a notice of appeal despite Smith's request that he do so. Nor did he establish that it is more probable than not that a reviewing court would have reversed the judgment if such a notice had been filed. (See and compare In re Anthony J. (2004) 117 Cal.App.4th 718, 732-733.) We have examined the entire record and are satisfied that appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment (order denying petition for writ of error coram nobis) is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Rand S. Rubin, Judge
Superior Court County of Los Angeles
______________________________
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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