Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F3836.
ROBIE, J.
In May 2005, defendant David Zamora and three codefendants robbed a local store. During the robbery, defendant fired a gun. Defendant was subsequently arrested and charged with second degree robbery. The information also alleged an enhancement for discharging a firearm, an enhancement for committing a crime to benefit a gang, and an enhancement for carrying a firearm to a gang crime.
Defendant was subsequently arraigned, counsel was appointed, and in June 2006, defendant waived a preliminary hearing and was held to answer the charges. After repeated continuances at the request of both defendant and the prosecution, a joint trial for all four defendants began on May 9, 2007.
Two weeks later, on May 24, 2007, the court declared a mistrial as a result of statements made to the jury by counsel for one of the codefendants during opening statements. Six days later, defendant was arraigned a second time, and on July 17, 2007, defendant changed his plea.
Defendant pled no contest to second degree robbery, admitted the gang benefit enhancement, and admitted the allegation that he carried a firearm to a gang crime. In exchange for his plea, the prosecution agreed to dismiss the enhancement for discharging a firearm, and agreed the maximum allowable term was 18 years.
Defendant waived a presentence investigation and probation report and was immediately sentenced to 18 years in state prison in accordance with the plea agreement. The court imposed various fees and fines, ordered defendant to register as a gang member, and awarded defendant 524 days of presentence credit. Defendant filed a notice of appeal and was issued a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the filing of the opening brief.
Defendant filed a supplemental brief raising three contentions, all without merit.
Defendant claims he suffered ineffective assistance of counsel because he was advised by counsel to waive his preliminary hearing, which he now believes was ill-advised, was later “convinced” by counsel to plead guilty “under duress,” and trial counsel failed to present “evidence that was very important [to his] defense.”
Defendant’s claims fail because they are based largely on facts outside of the appellate record. (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) The record does not indicate what discussions took place between counsel and defendant, what issues may have been taken into consideration in reaching the decisions to waive the preliminary hearing and later, to plead no contest, or what evidence should have been taken into consideration prior to entering the plea.
Matters affecting the adequacy of counsel’s representation which are outside the record cannot be reviewed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Mosqueda (1970) 5 Cal.App.3d 540, 546.) Accordingly, defendant’s claims fail.
Defendant next claims his Miranda rights were violated because the police “kept trying to ask [him] questions” after he requested a lawyer.
Finally, he contends the trial court and the prosecutor were biased against him because he is Hispanic. In support of his claim, defendant relies on a statement made by the prosecutor at a hearing before trial began, during which the prosecutor said, “those prior acts can come in to help the expert make his opinion and prove this Hispanic charge -- or excuse me, the enhancement.” As to these claims, they relate to conduct occurring before or at the trial that ended in a mistrial. They are, therefore, not cognizable on this appeal from a no contest plea.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., NICHOLSON, J.