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People v. Berry

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 21, 2003
D041338 (Cal. Ct. App. Nov. 21, 2003)

Opinion

D041338.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. EDDIE LEE BERRY, Defendant and Appellant.


After Eddie Lee Berry filed and withdrew a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), and the court denied a second and a third Marsden motion, Berry then entered a negotiated guilty plea to lewd and lascivious acts upon a minor 14 or 15 years of age (Penal Code, § 288, subd. (c)(1)). He admitted a strike prior (Pen. Code, § 667, subd. (b)-(i)). The court sentenced him to prison for four years: double the two-year middle term for committing a lewd act upon a minor 14 or 15 years of age with a strike prior. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 31(d).)

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 Berrys trial counsel provided effective assistance.

We granted Berry permission to file a brief on his own behalf. He has responded. Berry claims that before the preliminary hearing he entered a plea agreement that did not include the strike prior. He made this claim at the second Marsden hearing. In response defense counsel told the court that while filling out the plea agreement form he asked Berry if entry of this guilty plea was free and voluntary. Berry responded "No" so counsel tore up the form and proceeded with the preliminary hearing. Berry denied this. The court believed counsel. In determining whether a factual finding is supported by substantial evidence, we must not usurp the trier of facts assessment of credibility. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684.)

In his supplemental brief Berry makes reference to ineffective assistance of trial counsel. This record, however, is not sufficient to permit this court to address the issue of whether counsel was ineffective. If Berry wishes to pursue such claim, he should file a petition for writ of habeas corpus in the trial court. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

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 Berry on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P. J., McINTYRE, J. --------------- Notes: Because Berry entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.


Summaries of

People v. Berry

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 21, 2003
D041338 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Berry

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EDDIE LEE BERRY, Defendant and…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 21, 2003

Citations

D041338 (Cal. Ct. App. Nov. 21, 2003)