Opinion
NOT TO BE PUBLISHED
Before Harris, Acting P.J., Cornell, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County. Ct. No. 07CM7045 James T. LaPorte, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
OPINION
INTRODUCTION
Appellant, Manuel Chavez, was charged in a criminal complaint filed January 23, 2007, with felony possession of a sharpened instrument while a prisoner in the custody of the Department of Corrections (Pen. Code, § 4502, subd. (a)). The complaint further alleged a residential burglary conviction as a prior serious felony allegation within the meaning of the three strikes law and five prior prison term enhancements.
All further statutory references are to the Penal Code.
On March 29, 2007, appellant entered into a plea agreement whereby he would admit the section 4502, subdivision (a) allegation and the prior serious felony allegation in return for the dismissal of the other allegations. Appellant would receive a sentence consecutive to the one he was serving when he committed the instant offense. The court advised appellant he would receive a consecutive sentence of one-third the midterm of three years, or one year, which would be doubled to two years because of the strike allegation. The court advised appellant of the consequences of his plea as well as his constitutional rights pursuant to Boykin/Tahl. Appellant expressly waived each right in open court.
According to a post-sentence report prepared by the probation department, appellant was observed in state prison by a correctional officer crouching down against the cement wall of a prison yard. His blue denim jacket was covering his lower torso. A correctional officer detained appellant and found an instrument wrapped in blue latex and clear plastic in appellant’s left jacket pocket. The instrument was five inches long, half an inch wide, and sharpened to a point on one end.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Appellant told the court that he was freely and voluntarily entering his change of plea, he was not threatened to get him to enter a false plea, and he had no questions concerning his advisements of rights. Appellant’s counsel stated he concurred in appellant’s waiver of rights and consented to his client’s plea. Counsel informed the court that appellant was waiving his right to have the court find a factual basis to the plea and that in doing so, appellant was waiving his right to appeal on the ground that the court accepted his plea without making a factual finding.
Although appellant’s counsel waived appellant’s right to have the trial court make a factual basis for the plea, the incident report by the correctional officer who detained appellant was included in the probation report. This document provides a factual basis for the plea. (People v. Trujillo (2006) 40 Cal.4th 165, 185 [where trial counsel stipulates to factual basis for plea, appellate court may rely on probation report to establish the factual basis for defendant’s plea].)
Appellant pled no contest to the section 4502, subdivision (a) allegation and admitted a prior serious felony conviction within the meaning of the three strikes law. Appellant waived his right to a preliminary hearing and to a formal sentencing hearing. The court imposed a two-year sentence to run consecutively with the sentence appellant was serving when he committed the instant offense and imposed a restitution fine. On May 9, 2007, the trial court denied appellant’s application for a certificate of probable cause.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on July 12, 2007, we invited appellant to submit additional briefing.
Appellant responded with a letter stating the case against him was a lie and that he had a witness who could testify that he was innocent. Appellant contends his counsel failed to contact the witness in question and “instructed” appellant to enter into the change of plea. Appellant argues his counsel was ineffective and that he should be allowed to withdraw his plea.
Appellant submitted copies of a petition for writ of habeas corpus that he filed with the trial court.
Appellant’s letter includes the trial court’s order denying his petition as an attachment. The court found that appellant’s petition failed to state a prima facie claim for relief because he made only vague assertions that his appointed counsel was ineffective. The court further found appellant failed to provide specific facts as to how defense counsel misadvised him. The decision of any court regarding a ruling on a habeas corpus proceeding, assuming that court has jurisdiction, cannot be reviewed by another court in any way. (People v. Garrett (1998) 67 Cal.App.4th 1419, 1421-1422; Matter of Zany (1913) 164 Cal. 724, 726.)
DISCUSSION
We initially note that appellant failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious or prejudicial errors in appellant’s change of plea hearing. Appellant was fully advised of the consequences of his plea and his constitutional rights in the waiver of rights and change of plea form. He was further advised of and waived his constitutional rights by the trial court. The incident report established a prima facie factual basis for the plea. Appellant received the sentence for which he bargained. Appellant has also failed to demonstrate ineffective assistance of trial counsel.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contender is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.) When appellant admitted the allegation in the complaint, his change of plea supplied the evidence that he committed every element of the charged offense.
After independent review, we conclude that there is no arguable legal or factual issue.
DISPOSITION
The judgment is affirmed.