P. v. Hatcher

Filed 4/4/06 P. v. Hatcher CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Jack Morgan, Judge. Dismissed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Donald Edwin Hatcher appeals the judgment entered after conviction following his plea of no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and his admission of a prior serious or violent felony conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Pursuant to a plea bargain, the trial court sentenced Hatcher to a term of 32 months in state prison. Because Hatcher pleaded no contest and failed to obtain a certificate of probable cause, we dismiss the appeal as inoperative.

FACTUAL AND PROCEDURAL BACKGROUND

The evidence adduced at the preliminary hearing indicated that on April 20, 2004, a sheriff's deputy stopped a vehicle driven by Hatcher on 119th Street because it lacked a front license plate. Hatcher did not have a driver's license in his possession. In a search conducted in the field, the deputies found a paper bindle containing 0.12 grams of a substance containing cocaine in one of Hatcher's socks.

Hatcher was charged with possession of cocaine with a prior serious or violent felony of robbery in 1987 and prior prison terms in 1987, 1995 and 1998.

Pursuant to a plea bargain, Hatcher pleaded no contest to possession of a controlled substance and admitted the prior strike conviction in exchange for the low term of 16 months, doubled to 32 months in state prison.

CONTENTIONS

We appointed counsel to represent Hatcher on this appeal. After examination of the record, counsel filed an opening brief in which no issues were raised and which requested this court to conduct an independent review of the record.

Hatcher filed a supplemental opening brief in which he contends the evidence was procured as a result of an illegal search and seizure and defense counsel rendered ineffective assistance in failing to seek suppression of the evidence.

DISCUSSION

1. Hatcher's claim of ineffective assistance of counsel will be resolved in his related petition for writ of habeas corpus.

We initially construed Hatcher's supplemental opening brief as a request for new counsel on appeal. (See People v. Marsden (1970) 2 Cal.3d 118.) We forwarded a copy of Hatcher's letter to appointed appellate counsel and directed counsel to advise this court, ex parte and under seal, what investigation, if any, appointed appellate counsel had conducted into why trial counsel failed to seek suppression of the evidence seized from Hatcher's sock or otherwise challenge the propriety of the search and seizure in this case.

Appointed appellate counsel filed a response which suggested defense counsel had provided competent assistance. Hatcher thereafter disputed the factual allegations contained in appointed appellate counsel's response. Because this court is not equipped to determine the factual issues presented, we have construed Hatcher's supplemental opening brief as a petition for writ of habeas corpus and have issued an order to show cause in that matter (case No. B189914), returnable in the superior court, directing the trial court to appoint counsel to assist Hatcher and thereafter to conduct an evidentiary hearing on the issues raised in Hatcher's petition. Thus, Hatcher's claim he illegally was searched and defense counsel rendered ineffective assistance in failing to seek suppression of the evidence against him, issues which cannot be addressed on the present record, will be resolved in proceedings related to Hatcher's writ petition.

2. Review of the record on appeal.

We have examined the entire record and are satisfied Hatcher's counsel has complied fully with counsel's responsibilities with respect to all issues that are cognizable on appeal. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Hatcher pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed as inoperative. (In re Chavez (2003) 30 Cal.4th 643, 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097; Pen. Code, § 1237.5.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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