P. v. Chairez

Filed 3/29/06 P. v. Chairez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen and Browder A. Willis, Judges. Affirmed.

After the trial court denied a motion for substitution of counsel (People v. Marsden (1970) 2 Cal.3d 118), Luis Chairez entered a guilty plea to two counts of kidnapping an adult (Pen. Code, § 207, subd. (a)),^[1] one count of kidnapping a minor under the age of 14 years (§ 208, subd. (b)), two counts of forcible rape, one while personally using a deadly weapon (a knife) (§ 261, subd. (a)(2), 12022.3, subd. (b)), and two counts of robbery (§ 211). The court sentenced him to prison for a stipulated term of 49 years: the 11-year upper term for kidnapping a minor under the age of 14 years, with full term consecutive sentences of the five-year middle term on each conviction of kidnapping an adult, consecutive eight-year upper terms for each conviction of forcible rape, one enhanced by the full upper term of 10 years for weapon use, and one year on each robbery conviction (one-third the middle term).^[2] 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. We granted Chairez permission to file a brief on his own behalf. He has not responded. In his request for a certificate of probable cause, Chairez contended he was denied effective assistance of counsel, because his counsel coerced him to enter the plea agreement that included excessive punishment in light of his role in the crimes. He also mentioned he was denied due process "due to his interpreter."

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 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.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The same is true regarding any dissatisfaction with the interpreter. (See People v. Alvarez (1996) 14 Cal.4th 155, 239.) The record before this court does not include facts supporting a claim of ineffective assistance of counsel or a denial of due process caused by Chairez's interpreter.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Chairez on this appeal.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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

^[2] Because Chairez entered a guilty plea, he cannot challenge the facts underlying the convictions. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.