P. v. Alcantar
Filed 6/14/06 P. v. Alcantar 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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. MANUEL ALEJANDRO ALCANTAR, Defendant and Appellant. | D047125 (Super. Ct. No. SCD177820) |
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.
Manuel Alejandro Alcantar (Alcantar) entered negotiated guilty pleas to two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b))[1] and admitted personally using a firearm during the incident (§ 12022.5, subd. (a)(1)) and committing the offense to benefit a street gang (§ 186.22, subd. (b)(1)). The court denied a motion to withdraw the guilty plea and sentenced Alcantar to a stipulated 17 years in prison: the three-year lower term on one count of assault with a semiautomatic firearm enhanced by the four-year middle term for personal firearm use and 10 years for committing the crime to benefit a street gang. It imposed a concurrent term on the second conviction. 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 the trial court properly advised Alcantar of his constitutional rights and did the guilty pleas comply with Boykin v. Alabama (1968) 395 U.S. 238, 242-243 and In re Tahl (1969) 1 Cal.3d 122, 132; (2) whether the trial court erred in failing to advise Alcantar how the 17 year sentence was to be computed; and (3) whether the trial court erred in failing to advise Alcantar that 10 years of the sentence was for the gang enhancement.[2]
We granted Alcantar permission to file a brief on his own behalf. He has responded. Alcantar asks whether the trial court exercised discretion to allow him to withdraw the guilty pleas, whether the trial court inquired into Alcantar's understanding of the consequences of the gang enhancement, and whether Alcantar's appellate counsel should be relieved after describing the appeal as frivolous and raising no appellate issue. He asks us to replace his appellate counsel.
Withdrawal of the guilty pleas.
Alcantar cannot challenge on appeal the denial of his motion to withdraw the guilty plea absent a certificate of probable cause. (§ 1237.5; In re Chavez (2003) 30 Cal.4th 643, 651; In re Brown (1973) 9 Cal.3d. 679, 683.) Here, no certificate has been issued.
Understanding the consequences of the gang enhancement.
Whether Alcantar understood the consequences of his guilty plea is relevant solely to the validity of the guilty plea. 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.) Additionally, when Alcantar pled guilty, he agreed to a stipulated sentence of 17 years; he does not claim he was misled in any way concerning the length of the sentence to be imposed as a result of the guilty plea.
Request to replace appellate counsel.
Alcantar asks whether he had a conflict of interest with his appellate counsel after appellate counsel described the appeal as frivolous. He is correct as to the law (see People v. Wende, supra, 25 Cal.3d at p. 442), but mistaken as to the facts. Alcantar's appellate counsel found no arguable appellate issues, but did not maintain the appeal is frivolous. While failure of appellate counsel to "to raise crucial assignments of error, which arguably might have resulted in a reversal," deprives an appellant of effective assistance of appellate counsel (In re Smith (1970) 3 Cal.3d 192, 202-203), we have reviewed the entire record and find no arguable appellate issue. Alcantar did not have a conflict of interest and was not denied effective assistance of counsel through his attorney filing a brief in this appeal under People v. Wende, supra, 25 Cal.3d 436. For this reason, we also deny his request to replace his appellate counsel.
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 Alcantar on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
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[1] All statutory references are to the Penal Code.
[2] Because Alcantar entered guilty pleas, 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.
