Opinion
D048846
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. DARWIN ANTHONY BEN, Defendant and Appellant.
In Superior Court of San Diego County case No. SCD190423, on September 22, 2005, Darwin Anthony Ben entered a negotiated guilty plea to forgery. (Pen. Code, § 476.) On the same day, in case No. SCD191865, Ben entered negotiated guilty pleas to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), receiving a stolen vehicle (Pen. Code, § 496d), and driving to evade an officer (Veh. Code, § 2800.1, subd. (a)). On October 21, 2005, at a hearing on both case No. SCD190423 and case No. SCD191865, the court suspended imposition of sentence and placed Ben on probation for three years, including conditions he serve 270 days in custody and obey all laws. In case No. SCD197217, on March 14, 2006, Ben entered negotiated guilty pleas to possessing a controlled substance and forgery (Pen. Code, § 470, subd. (d)) on condition the court suspend a three-year sentence and determine his eligibility for commitment to the California Rehabilitation Center (CRC). The court sentenced him to three years in prison: the three-year upper term for forgery with a concurrent term for possessing a controlled substance, suspended execution of the sentence and committed Ben to CRC. It revoked probation in case No. SCD190423 and case No. SCD191865 and imposed sentences on those convictions concurrent with case No. SCD197217. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)
All referenced trial case docket numbers are cases of the Superior Court of San Diego County.
Ben has filed a notice of appeal in case No. MH99674. This is the commitment to CRC in case No. SCD197217.
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. In case No. SCD190423, on February 9, 2005, Ben presented a check for $936.42 to a teller at a Wells Fargo Bank in the Sports Arena area. The teller discovered the check was drawn on an account that did not exist. Ben left the bank without taking the check or his drivers license. When Ben returned to the bank for the check and his drivers license, he was arrested. Ben claimed he obtained the check from the purchaser of a computer he sold. In case No. SCD191865, on June 29, 2005, officers saw Ben driving a vehicle that had been stolen several weeks earlier. The officers activated their siren and overhead lights. Ben failed to yield and the officers pursued. Ben reached speeds of 100 miles per hour. In the car, officers found a container holding 3.99 grams of methamphetamine. In case No. SCD197217, Ben admitted knowingly attempting to pass a forged check and possessing methamphetamine on or about February 27, 2006. Because Ben entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.
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 Ben was properly advised of his constitutional rights before entering the guilty plea; (2) whether the trial court properly committed Ben to CRC; and (3) whether Bens trial counsel provided effective assistance.
Advice of constitutional rights.
Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (Pen. Code, § 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Whether Ben was advised of his constitutional rights is relevant only to the validity of the plea. (See People v. Pinon (1979) 96 Cal.App.3d 904, 910.)
CRC commitment.
The CRC evaluation for commitment was part of the plea agreement. "[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself." (People v. Panizzon (1996) 13 Cal.4th 68, 79.) To challenge the guilty plea it is incumbent on Ben to have obtained a certificate of probable cause. (Ibid.)
Ineffective assistance of counsel.
Appellate counsel does not say what Bens attorney did or did not do that competent counsel would have done or not done. In requests for a certificate of probable cause, Ben claimed his trial attorney did not advise him of the consequences of the guilty pleas, did not advise him he was ineligible for probation, failed to advise him he would have to serve a period of parole, and failed to advise him of the possibility of commitment to CRC. The record sheds no light on these claims, except we note the court placed Ben on probation after the first two convictions, stayed the prison sentence, and a CRC evaluation was part of the plea agreement that Ben entered. "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.)
We granted Ben permission to file a brief on his own behalf. He has not responded. 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 Ben on this appeal.
DISPOSITION
The judgment is affirmed.
We Concur:
BENKE, J.
IRION, J.