Opinion
H042479
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDREW BURNETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. CC196212, 210631 & CC102475)
On June 19, 2001, appellant was convicted by a jury of killing, maiming, or abusing an animal. (Pen. Code, § 597, subd. (b).) On September 5, 2001, appellant pled nolo contendere to two counts of preparing false documentary evidence. (Pen. Code, § 134.) Thereafter he was convicted of grand theft by an employee (Pen. Code, § 487, subd. (b)(3)), with an allegation that he had taken, damaged and destroyed property of a value exceeding $50,000 (Pen. Code, § 12022.6, subd. (a)(1)); of vandalism involving damage in excess of $10,000 (Pen. Code, § 594, subd. (b)(1)), with an allegation that he had taken, damaged and destroyed property of a value exceeding $50,000 (Pen. Code, § 12022.6, subd. (a)(1)); of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)); of giving false information to a peace officer. (Veh. Code, § 31.)
On September 21, 2001, the trial court sentenced appellant on all three cases. On the animal killing charge the court sentenced appellant to the upper term of three years. On the false documents charges, the trial court sentenced him to 16 months in state prison on each count, to be served concurrently. Finally on the grand theft charge, the trial court sentenced appellant to eight months, to be served consecutively to the sentence imposed in the animal abuse charge, and an additional two years for the other charges, to be served concurrently and stayed pursuant to Penal Code section 654. The trial court ordered appellant to pay a restitution fine in the amount of $60,589.27.
On March 4, 2015, appellant filed a petition requesting reduction of all offenses in all cases to misdemeanors pursuant to Penal Code section 1170.18. On March 19, 2015, the superior court filed an order denying the petitions on the grounds that none of appellant's offenses were eligible for relief under that section. Appellant filed an untimely notice of appeal on May 20, 2015.
On appeal, we appointed counsel to represent appellant in this court. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues.
We must first note that, appellant has neither sought, nor has been granted relief in this court from his default to file a timely notice of appeal. In his opening brief, appellant acknowledges that his notice of appeal was filed two days late. However, appellant contends in a footnote to his opening brief that this court should "nevertheless entertain the appeal because appellant was clearly not notified of his right to appeal and the time for taking an appeal as is required by California Rules of Court, rule 4.305 when the superior court issued its order. Consequently, he asks this Court to deem the late filed notice of appeal to be constructively filed within the 60-day period." (See Castro v. Superior Court (1974) 40 Cal.App.3d 614, 618-621.)
We note that the proper means for seeking relief from default for failure to file a timely notice of appeal is by way of motion, supported by properly authenticated evidence, not by way of a footnote in an opening brief. Failure to file a timely notice of appeal deprives this court of jurisdiction to consider an appeal. (Cal. Rules of Court, rule 8.308.) Therefore, we are without authority to consider an opening brief—or any footnote therein—without such relief first having been granted. Nevertheless, because such a motion, if filed, would have been granted, and because we generally do not penalize appellant for appellate counsel's failure to file a motion for relief, we hereby grant relief from default and will proceed with the substantive appeal.
Pursuant to Serrano, on May 26, 2016, we notified appellant of his right to submit written argument on his own behalf within 30 days. On June 27, 2016, we received a supplemental letter from appellant. In his letter, appellant contends that the vehicle theft and animal killing charges are eligible for resentencing under Proposition 47 because neither the value of the vehicle nor the animal here was found to be over $950. He also contends that appellate counsel was ineffective for filing a brief pursuant to Serrano. On September 29, 2016, we asked appellate counsel to provide a supplemental brief addressing the value of the vehicle at issue in the grand theft charges. On November 3, 2016, counsel filed a supplemental letter brief and a request for judicial notice of our case No. H023595, People v. Burnett. Granting that request, we now turn to appellant's supplemental contentions.
Appellant argues in his supplemental letter that the trial court erred in finding him ineligible for resentencing under Proposition 47 for the Vehicle Code section 10851 conviction. He claims that he is eligible because the value of the vehicle was not over $950. It is his burden is to show that the value of the property taken is less than $950. (See Pen. Code, §§ 459.5, 490.2.) In counsel's supplemental letter brief, she concedes that the value of the "the van which was the subject of the Vehicle Code section 10851conviction was valued at $31,732." Appellant has not, therefore, met that burden of showing that the value of the vehicle was below $950. The trial court properly found that appellant was not eligible for the requested relief. Similarly, the trial court properly found that appellant was not eligible for Proposition 47 relief for the animal killing conviction. Proposition 47 does not apply to the killing of an animal under Penal Code section 597. The monetary value of the animal is irrelevant.
Finally, appellant claims that appellate counsel has provided ineffective assistance of counsel because she provided no alternatives to filing an opening brief pursuant to Serrano. Ineffective assistance of appellate counsel is not a cognizable argument on appeal. Appellant must raise this claim either in a motion to relieve counsel or in a separate petition for habeas corpus. (See In re Reno (2012) 55 Cal.4th 428, 487-488, opn. mod., rehg. den. Oct. 31, 2012.) For the sake of expediency, we will treat the claim as a motion to relieve counsel, and address the argument substantively here.
In order to show ineffective assistance of counsel, appellant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that appellant was prejudiced thereby. (Strickland v. Washington, 466 U.S. 668, 688, 694.) Appellant contends that counsel's failure to give legal advice regarding alternatives to filing a Serrano brief or abandoning the appeal fell below the professional standard of care. Counsel does not provide ineffective assistance merely by filing a brief pursuant to Serrano. In Serrano, we recognized that the procedures for filing a brief stating the facts and case, but raising no arguable issue on appeal, set forth by the California Supreme Court in People v. Wende (1979) 25 Cal.3d 436, and approved by the United States Supreme Court in Smith v. Robbins (2000) 528 U.S. 259, 276, satisfy a counsel's ethical duties to his client and to the court. (Serrano, supra, 211 Cal.App.4th at pp. 500.) Counsel also has an ethical duty to raise only colorable issues. She correctly determined that there were none here. Under these circumstances, the mere fact that appellate counsel failed to offer additional alternatives to filing a Serrano brief or abandoning the appeal, does not support a claim for ineffective assistance of counsel. Therefore, we need not take any additional action on this claim.
As nothing in appellant's supplemental brief raises an arguable issue on appeal, we must dismiss it. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.