Filed 12/21/17 P. v. Willis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE,

Plaintiff and Respondent,

v.

DECODA RAY WILLIS,

Defendant and Appellant.

F075626

(Super. Ct. No. DF012558A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-


Appointed counsel for defendant Decoda Ray Willis asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we find no arguable issues.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On July 26, 2016, defendant approached the victim and stated, “Give me what you got,” while pointing a revolver-style firearm at him. The two struggled and defendant struck the victim on the head with the butt of the firearm more than once before fleeing.
On February 16, 2017, defendant pled no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)). He admitted personally using a firearm (§ 12022.5, subd. (a)) and having suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On March 16, 2017, the trial court sentenced defendant to three years in prison, doubled pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a) (d)), plus three years on the firearm use enhancement, as agreed. The court also imposed various fines and fees.
On May 5, 2017, defendant filed a notice of appeal. He requested a certificate of probable cause based on ineffective assistance of counsel, which the trial court granted.
After reviewing the entire record, we find no arguable issues.
We note that defendant may raise issues regarding defense counsel’s representation by way of writ of habeas corpus. Claims of ineffective assistance of counsel are more appropriately litigated in a habeas corpus proceeding. The record before us sheds no light on the claims defendant raised in his request for certificate of probable cause. Where, as here, the record does not show why counsel acted or failed to act in the ways the defendant claims, we must reject an ineffective counsel claim based only on the record on appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) A verified petition for habeas corpus allows a defendant to allege facts outside the appellate record to show that counsel’s failure was not justified by a tactical choice or other legitimate reason, and thus might constitute ineffectiveness. (See People v. Michaels (2002) 28 Cal.4th 486, 526; People v. Anderson (2001) 25 Cal.4th 543, 569.)
DISPOSITION
The judgment is affirmed.