Opinion
H042922
01-12-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLIE CAMPA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 211367)
On December 4, 2008, a Santa Clara County Grand Jury indicted appellant and 19 other men on a total of 43 counts and numerous enhancements. On April 22, 2010, appellant pled guilty to three counts of conspiracy (Pen. Code, § 182, subd. (a)(1)), two counts of aggravated assault (Pen. Code, § 245, subd. (a)(1)), and one count of participation in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) Additionally, appellant admitted three prior drug sales convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c), and three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), which the trial court stayed. A 1990 conviction out of San Benito County for violating Health and Safety Code section 11351 in case No. 3384 served as the basis for one prior prison term and one prior drug sales enhancement. The trial court sentenced appellant to a total term of 23 years 8 months in prison.
At some point in 2015, appellant petitioned the San Benito County Superior Court for resentencing in case No. 3384 pursuant to Proposition 47. The deputy court clerk for San Benito County Superior Court returned appellant's petition unfiled, and informed him that "Case CR-90-3384 has already been reduced to a Misdemeanor." The clerk additionally informed appellant that the case file had been destroyed.
On July 1, 2015, appellant filed a petition in the Santa Clara County Superior Court for resentencing in his commitment offense under Proposition 47. Appellant explained that his conviction in San Benito County case No. 3384, which served as the basis for the prior prison and prior drug sales enhancements, had been reduced to a misdemeanor, and he argued that his sentence should be reduced accordingly. On July 22, 2015, the superior court denied appellant's petition for resentencing, finding that Proposition 47 has no retroactive effect on already proven or admitted prior prison and drug sales enhancements. Specifically, the court held that "Nothing in Proposition 47 or Penal Code §1170.18 authorizes striking an enhancement that has been pleaded and proven and is now final, or reducing state prison terms for offenders who have been convicted of non-prop.47 offenses. Enhancements for prior prison convictions and prior drug offenses go to the nature of the offender, not the underlying offense. [Citation.] The fact that the underlying offense resulting in a prior prison term is now a misdemeanor under Prop. 47 does not change the validity of the enhancement because it was a felony at the relevant time, and both Penal Code §667.5(b) and Health & Safety Code §11370.2 are enhancements based on recidivist conduct." Appellant constructively filed a timely notice of appeal on September 18, 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. Pursuant to Serrano, on July 25, 2016, we notified appellant of his right to submit written argument in his own behalf within 30 days. On September 28, 2016, we received a supplemental opening brief from appellant. In his brief, the appellant contends that he has received ineffective assistance of appellate counsel because counsel delayed for over a year before filing an opening brief, and because counsel filed a brief pursuant to Serrano. Appellant also argues that his appeal from post-conviction proceedings is not subject to "Anders" and "Wende" procedures, and finally he reargues that his sentence is unlawful.
Anders v. State of California (1967) 386 U.S. 738.
People v. Wende (1979) 25 Cal.3d 436 (Wende).
Appellant's claim regarding ineffective assistance of appellate counsel is not a cognizable argument on appeal. He 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 first complains that counsel delayed for nearly a year before filing the opening brief. However, because appellant fails to articulate any prejudice from this delay, his ineffective assistance of counsel claim fails on this ground.
Next appellant contends that counsel's failure to raise any arguable issues 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 Wende, supra, 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. (Serrano, supra, 211 Cal.App.4th at pp. 500.) The mere fact that appellate counsel failed to raise an issue in the opening brief, does not support appellant's ineffective assistance claim.
Appellant next argues that the opening brief did, in fact, articulate facts to support an arguable issue—that appellant's sentence was unlawful—but, despite these facts, counsel failed to make the argument in the opening brief. In support of this claim appellant quotes from one of counsel's requests for extensions of time. In requesting additional time, counsel declared "As it stands now, I have seen no court records to support the proposition that appellant was ever convicted of a felony violation of Health and Safety Code section 11351 out of San Benito County. Because an enhancement under Health and Safety Code section 11370.2 by its plain language applies only to a 'prior felony conviction,' it currently appears that part of appellant's sentence may be unlawful." The only thing this quote shows is that counsel needed additional time to diligently pursue all potential issues on appeal. Counsel's declaration in support of the extension request does not show that he ultimately concluded that the sentence was unlawful, or that this issue was arguable on appeal here, and that, despite such a conclusion, negligently failed to raise that argument. Appellant's claim that appellate counsel was ineffective is without merit, and we need not take any further action on it.
In fact, appellant's contention that the sentence was unlawful, even if it were supported by any evidence in the record, is not properly raised in an appeal from an order denying a Proposition 47 petition. The sentence is long final, and appellant's challenge to its lawfulness by filing a Proposition 47 petition was improper below. The trial court correctly found that Proposition 47 has no retroactive effect on already proven or admitted prior prison and drug sales enhancements, and, based on this finding, properly refused to modify appellant's sentence for offenses that are not eligible for Proposition 47 relief.
Appellant has made no claim, of which we are aware, regarding the propriety of the destruction of the files in San Benito County, nor has he claimed that any prejudice resulted therefrom.
Finally, appellant asserts that because this is a post-conviction proceeding, he should not be subject to Wende review, which is limited to first appeals of right from a judgment of conviction. Appellant is correct, in part. As we held in Serrano, Wende review is only available in first appeals of right from a judgment of conviction. However, appeals from post judgment proceedings are subject to review pursuant to Serrano, which also allows counsel to file a brief that states the facts and case, but raises no arguable issue. The main distinction between Wende and Serrano is that Serrano does not require this court to independently review the record. (Serrano, supra, 211 Cal.App.4th at p. 500.)
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.