Opinion
B191967
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMAR CORNELL NUNALLY, Defendant and Appellant.
Jamar Cornell Nunally, in pro. per., and Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Jamar Nunally appeals from the judgment entered following his negotiated plea of guilty to second degree murder. We appointed counsel to represent him and counsel filed an opening brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) We then sent notice to defendant that within 30 days he could personally submit any contentions or issues that he wished us to consider. Defendant has submitted a response, which is discussed below.
The preliminary hearing established that at the end of an evening in which Ryan Groetken and two friends attended an "after-party" following a concert, the three drove to an apartment in Hollywood in a Lexus that had "spinner rims." As Groetkens friends were about to enter the lobby of the apartment building, they saw Groetken back at the car, where he was being pushed around by men who were later identified as defendant and Dane Woodson. Defendant and Woodson asked for the keys to the Lexus and Groetken said that he was "not going to die over this." Woodson then shot Groetken in the back, fatally wounding him. Defendant and Woodson next went through Groetkens pockets and, with the help of a third accomplice, stole the Lexus.
Defendant and Woodson were charged with special circumstances murder, carjacking, and conspiracy. Woodson pleaded guilty to first degree murder without special circumstances. Defendant pleaded guilty to second degree murder. Following defendants plea, he made a motion to withdraw the plea on various grounds, including ineffective assistance of counsel, being pressured into entering the plea because false testimony would have been introduced against him, and having not been allowed to speak with his family members before entering the plea. Defendants motion was denied.
In defendants submission to this court, he states that it is his intent to argue facts that were overlooked and point out areas that were neglected due to the incompetence of his attorney. Defendant then argues specific facts that he asserts disprove his identification by an eyewitness, asserts he has proof that his physical appearance at the time of the incident differed from a composite sketch that was based on a description given by the eyewitness, and further states that he had a conflict with his trial attorney, who told defendant that he would be found guilty and failed to adequately investigate the case.
Defendants factual assertions are not part of the record before this court, and therefore cannot be considered. We have read the sealed transcripts of the multiple Marsden hearings (People v. Marsden (1970) 2 Cal.3d 118) at which defendant complained about his trial attorney. We agree with the trial court that counsel adequately responded to all of defendants complaints and that no basis existed for providing defendant with new counsel.
With respect to defendants other claims of ineffective assistance of counsel, "defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. [Citations.]" (People v. Kelly (1992) 1 Cal.4th 495, 519-520; accord, People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence [outside of] the record may be taken to determine the basis, if any, for counsels conduct or omission. [Citation.]" (People v. Fosselman (1983) 33 Cal.3d 572, 581-582; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) As the appellate record in this case does not show any failings of trial counsel, defendants contention must be rejected.
We have examined the entire record and are satisfied that counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
We concur:
SPENCER, P. J.
ROTHSCHILD, J.