P. v. Moriel
Filed 6/12/06 P. v. Moriel CA4/1
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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| THE PEOPLE, Plaintiff and Respondent, v. ADOLPH V. MORIEL, Defendant and Appellant. | D047037 (Super. Ct. No. SCD189347) |
APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.
Adolph V. Moriel entered a negotiated guilty plea to two counts of lewd and lascivious conduct with a minor under the age of 14 years (Pen. Code, § 288, subd. (a))[1] and one count of failing to register as a sex offender (§ 290, subd. (a)(2)). He admitted a prior strike. (§§ 667, subds. (b)-(i), 1170.12, 668.) The court sentenced him to prison for 16 years: double the six-year middle term on one count of committing lewd and lascivious conduct on a minor with a prior strike and a consecutive four-year term on the second count of committing lewd and lascivious conduct on a minor with a prior strike (one-third the middle term). It imposed a concurrent term on the conviction of failing to register as a sex offender. 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 imposing a consecutive term was an unauthorized sentence, and (2) whether the court adequately stated reasons for imposing a consecutive term.[2]
We granted Moriel permission to file a brief on his own behalf. He has responded.
Moriel's contentions are several. He alleges he had no knowledge of the charges. He also contends he was denied effective assistance of counsel through the failure of trial counsel to investigate, obtain, and present evidence and subpoena matters Moriel believes were relevant. He also alleges his trial counsel threatened him with a guaranteed life term if he did not enter the guilty plea. He argues the entry of the guilty plea was the product of mistakes and ignorance, and he did not have sufficient time to consider the plea bargain. He also was unaware that his prior conviction could be used to enhance his sentence. Additionally, he asks whether due process permits conviction in the absence of substantial evidence of guilt, and whether due process rights are violated if the court refuses to strike prior convictions.
As mentioned, ante, the trial court denied Moriel's request for a certificate of probable cause. Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Whether Moriel had knowledge of the charges, entered the guilty plea because of mistakes and ignorance, had sufficient time to consider the plea bargain, was unaware that his prior conviction could be used to enhance his sentence, and whether due process requires substantial evidence of guilt are relevant only to the validity of the plea. (See People v. Pinon (1979) 96 Cal.App.3d 904, 910.)
The record before this court contains no facts supporting Moriel's claim he was denied effective assistance of counsel. "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.)
Whether due process required the trial court here to strike a prior conviction cannot be raised on appeal because Moriel agreed to a stipulated sentence. A stipulated sentence cannot be challenged on appeal absent a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79.)
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 Moriel has raised has disclosed no reasonably arguable appellate issue. Competent counsel has represented Moriel on this appeal.
DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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[1] All statutory references are to the Penal Code.
[2] Because Moriel entered a guilty plea, he cannot challenge the facts underlying the conviction. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.
