P. v. Martinez

Filed 5/19/06  P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Gale E. Kaneshiro and George W. Clarke, Judges.  Affirmed.

            Robert Martinez entered negotiated guilty pleas to two counts of forcible lewd and lascivious conduct with a minor under the age of 14 years and admitted the crimes involved substantial sexual conduct.  (Pen. Code, §§  288, subd. (b)(1), 1203.066, subd.  (a)(8).)  The court sentenced him to 16 years in prison:  the eight-year upper term on one count of forcible lewd and lascivious conduct with a minor under 14 years of age with a full upper term of eight years consecutive on the second conviction.^[1]  The court denied motions to withdraw the guilty plea and denied a continuance of the sentencing hearing.  The record does not include 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 Martinez was properly advised of and waived his constitutional rights before entering the guilty pleas; (2) whether Martinez's trial counsel provided effective assistance; (3) whether the trial court erred in denying the motion to withdraw the guilty pleas and whether this issue can be raised absent a certificate of probable cause; (4)  whether the trial court erred in relying on the victim's young age in imposing the upper term, whether this issue can be raised absent objection in the trial court, and whether, if error occurred, Martinez was prejudiced; and (5) whether Blakely error occurred (Blakely v. Washington (2004) 542 U.S. 296), and whether this issue was waived.

            We granted Martinez permission to file a brief on his own behalf.  He has responded.  Martinez contends he was denied effective assistance of counsel by two different trial attorneys and his appellate counsel.  He argues that neither of his trial attorneys was competent to handle federal law; that his first appointed counsel from the office of the public defender was ineffective because she failed to investigate and ignored his witnesses, his evidence and his letters; and that he entered the guilty pleas because of her false representations.  Martinez argues the attorney from the office of the alternate public defender appointed to represent him on a motion to withdraw the guilty pleas was ineffective because he ignored Martinez's case, did not comment on the evidence and ignored his witnesses.  Competent counsel is not required to comment on the evidence or potential witnesses at a motion to withdraw a guilty plea.  The only issue is, was the plea entered as a result of mistake, ignorance, inadvertence, or overreaching.  (People v. Urfer (1979) 94 Cal.App.3d 887, 892.)  There was no showing that occurred here.

            Regarding the other claims, the record contains no information supporting these allegations.  The burden is on the appellant to prove error.  (People v. Green (1979) 95 Cal.App.3d 991, 1001.)  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.)  " 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.)

            Martinez argues his appellate counsel was incompetent in finding no appellate issues.  Only when appellate counsel fails " to raise crucial assignments of error, which arguably might have resulted in a reversal," is an appellant deprived of effective assistance of appellate counsel.  (In re Smith (1970) 3 Cal.3d 192, 202-203.)  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, has disclosed no reasonably arguable appellate issue.  Competent counsel has represented Martinez on this appeal.

DISPOSITION

            The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1]             Because Martinez entered guilty pleas, he cannot challenge the facts underlying the convictions.  (Pen. Code, §  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.)  We need not recite the facts.