P. v. Stevens

Filed 7/13/06 P. v. Stevens CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed.

Sharon B. Stevens entered a negotiated guilty plea to acquiring and retaining possession of another person's access card with the intent to defraud. (Pen. Code, § 484e, subd. (d).) The court denied a motion to withdraw the guilty plea and placed her on three years' probation including a condition she serve 180 days in custody.^[1] The court denied a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Stevens was advised of the consequences of a guilty plea and her constitutional rights and, did she waive those rights before entering the guilty plea; (2) whether an adequate factual basis supports the guilty plea; (3) whether the trial court abused its discretion in denying the certificate of probable cause; and (4) whether Stevens can challenge on appeal denial of the certificate of probable cause.

We granted Stevens permission to file a brief on her own behalf. She has responded. Stevens contends she entered the guilty plea because of ineffective assistance of trial counsel. Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he or she received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; People v. Pope (1979) 23 Cal.3d 412, 425.) Stevens claims her trial counsel was ineffective in failing to adequately investigate, failing to adequately communicate with her, and failing to adequately prepare for trial. However, when reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) We cannot tell from the record whether any of Stevens's claims have merit. "Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance of counsel is more appropriately made in a petition for habeas corpus." (People v. Pope, supra, 23 Cal.3d at p. 426.) The petition should be filed in the trial court.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues raised by Stevens has disclosed no reasonably arguable appellate issue. Competent counsel has represented Stevens on this appeal.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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^[1] Because Stevens entered a guilty plea, she cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.