P. v. Tiwana

Filed 7/14/06 P. v. Tiwana 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, K. Michael Kirkman, Judge. Affirmed.

After the court denied a motion to substitute appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), Paul Tiwana entered a negotiated guilty plea to grand theft. (Pen. Code, § 487, subd. (a).)^[1] He admitted a prior strike. (§§ 667, subds. (b)-(i), 1170.12, 668.) The court sentenced him to a stipulated 32 months in prison: double the 16-month lower term for grand theft with a prior strike.^[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. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue whether Tiwana was properly advised of his constitutional rights and the consequences of pleading guilty and did he waive his rights.

We granted Tiwana permission to file a brief on his own behalf. He has responded. Tiwana contends: (1) after he entered the guilty plea, he learned he had a meritorious defense; (2) his lack of capacity due to mental illness; (3) his waiver of constitutional rights before he entered the guilty plea was ineffective due to his lack of capacity; (4) his trial counsel did not explain his right to a probation report and he lacked adequate time to review a probation report before sentencing; (5) he was not taken before a magistrate within 48 hours of his arrest; (6) he was mistaken as to the sentence he agreed to; (7) his trial counsel was ineffective in failing to explore a defense of mental illness and failing to request an interpreter at the arraignment; (8) his trial counsel coerced him to enter the guilty plea through a misrepresentation; (9) he entered the guilty plea through mistake, ignorance inadvertence, and a misrepresentation; (10) the trial court abused its discretion in denying a Marsden motion (People v. Marsden, supra, 2 Cal.3d 118); and (11) his trial counsel disclosed confidential information to a witness.

I

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.) Tiwana's claims that he had a meritorious defense that the guilty plea is invalid because his mental illness prevented free and intelligent waiver of constitutional rights, he entered the guilty plea through mistake, ignorance inadvertence, and a misrepresentation, and that he did not have time to study a probation report before entering the guilty plea. Tiwana's claims are relevant only to the validity of the plea. (See People v. Pinon (1979) 96 Cal.App.3d 904, 910.) The trial court denied Tiwana's request for a certificate of probable cause.

II

Tiwana claims his trial counsel was ineffective by not exploring a defense of mental illness, failing to request an interpreter at the arraignment, coercing him to enter and misrepresenting the effect of entering a guilty plea, and in not explaining Tiwana's right to a probation report. The record sheds no light on these claims. "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.)

III

To obtain reversal on appeal for failure to provide a timely arraignment a defendant must show prejudice resulting from the delay that denies the defendant a fair trial. (See People v. Searcy (1957) 153 Cal.App.2d 799, 802-803.) Here, the record shows no prejudice. In any case, "[o]ther than search and seizure issues . . . all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceeding resulting in the plea." (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) A claim in delay in the arraignment is not an appeal from denial of a motion to suppress evidence and had no effect on the court's jurisdiction or legality of Tiwana's entry of a guilty plea.

IV

Tiwana claims he mistakenly believed he was agreeing to a 22-month sentence not a 32-month sentence. However, when Tiwana entered the guilty plea he responded, "yes" when the court asked him if he understood that he was stipulating to a 32-month sentence.

V

A defendant who enters a guilty plea waives a challenge to denial of a Marsden motion unless ineffective assistance of counsel made the plea involuntary or was not intelligently made. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.) Here, at the Marsden hearing Tiwana complained that his attorney had a conflict of interest because she had previously represented his codefendant, and was ineffective because she disclosed confidential information to a witness, had not adequately contacted him and denied him discovery, and only wanted to make a deal with the prosecution. None of these complaints makes the guilty plea involuntary. Tiwana waived challenging the Marsden motion on appeal.

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 raised by Tiwana, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Tiwana on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Real Estate Attorney.

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

^[2] Because Tiwana 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.