Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FCH08486, FWV040164, Mary E. Fuller, Judge.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant, represented by counsel, pled guilty to conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)) (count 3) and attempted robbery (§§ 664/211) (count 4). Defendant also admitted that the attempted robbery was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). Defendant further admitted that he had sustained one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). In return, the remaining allegations were dismissed, and defendant was promised a stipulated prison term of 19 years in state prison. Defendant was sentenced in accordance with the plea agreement. Defendant appeals from the judgment, challenging the validity of the plea agreement, the sufficiency of the evidence, the denial of the suppression motion, the sentence, and the representation he received. For the reasons stated below, we reject these challenges and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The minute order of that proceeding incorrectly notes that defendant pled guilty to counts 1 and 2. This appears to be a clerical error created by the filing of the consolidated information.
The minute order of that proceeding again reflects a clerical error with respect to the gang enhancement, erroneously noting that defendant’s admission was as to count 2, rather than 4.
I
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from the suppression hearing.
A West Covina gang officer received specific information from an informant that the Citibank branch in Chino Hills was going to be robbed by five members of the Neighborhood Crips gang, including defendant, on the morning of December 23, 2006, with the use of guns. A red Chevrolet Tahoe was to be one of the vehicles used in the commission of the crime. The information was relayed to the San Bernardino County Sheriff’s Department.
A team of officers staked out the bank on the morning of December 23, 2006. A red Chevrolet Tahoe was observed in the parking lot of the bank driving in a manner the officers found suspicious. At the same time, a black Honda Accord drove into a parking lot across the street from the bank; the occupants of that vehicle were also acting suspiciously, looking around constantly, and speaking on telephones. At this point, the police decided to “take down” both vehicles. There were two occupants in the Honda, including defendant. The police confiscated cellular telephones from the red vehicle and the black vehicle and noted that the individuals had called each other. A handgun, masks, and a bag of ice (usable to defeat the bank’s dye pack) were found inside the red Tahoe.
Defendant was arrested and placed in the back seat of a police vehicle with two other people who had been arrested. A tape recorder was set up on the front seat in an attempt to obtain statements from the individuals. Statements related to potential charges, who might have informed the police, the robbery, the police watching them, and bail were obtained and transcribed. The recorded statements also linked defendant to the individuals in the red Tahoe.
Following a preliminary hearing, defendant and three other individuals were held to answer to the charges.
Defendant was charged by information with conspiracy to commit robbery and attempted robbery. It was also alleged that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang and that defendant had sustained two prior felony convictions, two violent felony convictions, and two prior strike convictions.
On March 5, 2007, defendant filed a motion to suppress the evidence pursuant to section 1538.5, challenging the reliability of the informant, his arrest, and the recorded statements. Following an evidentiary hearing, the motion was denied.
Four days later, pursuant to a negotiated plea agreement, defendant pled guilty to the charges and admitted the gang enhancement allegation. He also admitted that he had suffered one prior strike conviction. In return, defendant was promised a stipulated prison term of 19 years in state prison. Defendant acknowledged that he understood his constitutional rights and waived them and that he freely and voluntarily entered into the plea agreement.
On July 30, 2007, defendant was sentenced in accordance with the plea agreement with credit for time served.
On August 24, 2007, a notice of appeal was filed based on “the sentence or other matters occurring after the plea.” (Capitalization omitted.) No request for certificate of probable cause was made. An amended notice of appeal was filed on September 17, 2007, based on these same reasons. Again, a request for certificate for probable cause was not filed.
On April 18, 2008, an error in the computation of defendant’s presentence credits was corrected in the trial court.
II
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his 71-page supplemental brief, defendant asserts a multitude of arguments relating to the evidence, the suppression motion, the gang enhancement allegation, the preliminary hearing, the assistance he received, the sentence, and the presentence credits he received. Specifically, he claims (1) he received ineffective assistance of counsel when counsel failed to act with diligence, failed to investigate the facts and the informant, failed to explain the charges, failed to argue there was insufficient evidence for the attempted robbery and gang enhancement allegations, and persuaded him to plead guilty without adequately investigating the charges and gang allegation; (2) the trial court erred when it denied his suppression motion and allowed the recorded conversation to be admitted; (3) the magistrate erred in finding there was sufficient probable cause to file an information; (4) the trial court erred when it refused to allow cross-examination of the gang expert; (5) there was insufficient evidence that the crimes were committed for the benefit of a criminal street gang; his appellate counsel was ineffective in finding that no meritorious claims exist; (7) his sentence is in violation of sections 1170 and 654 and in error of the mandatory minimum sentencing procedures; and (8) the court erred in calculating his presentence custody credits.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, the record shows defendant was adequately advised of the rights being waived and the consequences of pleading guilty. Further, the plea agreement reflects defendant had sufficient time to consult with his attorney concerning the case. Additionally, in open court, defendant admitted that he understood all of his rights, that he was aware of the consequences of pleading guilty, and that he was waiving his rights and was willing to give up those rights for the benefit of the plea agreement. Defendant also replied in the affirmative when the court inquired whether he believed this plea bargain was in his best interest. In fact, defendant had no hesitations during the taking of the plea, and when the court asked whether defendant had any questions, defendant openly asked what would happen with his federal probation case.
“Other than search and seizure issues specifically reviewable under section 1538.5, subdivision (m), all errors arising prior to entry of plea of guilty or nolo contendere are waived by the plea, except those based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings . . . .’” (People v. Shults (1984) 151 Cal.App.3d 714, 718-719, and cases cited therein; see also § 1237.5, subd. (a).) Issues relating to a defendant’s guilt or to the procedure in establishing guilt are not cognizable on appeal following a change of plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 896; People v. Wakefield (1987) 194 Cal.App.3d 67, 69-71.) The reason for the rule is that a guilty (or nolo contendere) plea “admits all matters essential to the conviction.” (DeVaughn, at p. 895; see also People v. LaJocies (1981) 119 Cal.App.3d 947, 956, and cases cited therein; § 1016.) “Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.” (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) Defendant here pled guilty to the charges and admitted the gang enhancement and prior strike allegations, and therefore waived any claims to matters occurring prior to the entry of plea of guilty or any issues relating to the sufficiency of the evidence.
Moreover, defendant’s waiver of his right to appeal “from any motion [he] may have brought or could [have brought] and from the conviction and judgment” and his failure to obtain a certificate of probable cause forecloses his contentions. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Panizzon (1996) 13 Cal.4th 68, 86.) It is well settled that “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.” (Panizzon, at p. 79.) A defendant, therefore, is required to obtain a certificate of probable cause to attack a negotiated sentence on appeal. (Ibid.)
In addition, we reject defendant’s claims that trial counsel was ineffective for failing to investigate the charges against him, for failing to act with diligence, and for to zealously advocate in his behalf. There is no evidence in this record to support such a showing. Absent such a showing, we find no statutory or constitutional violation to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 698 [104 S.CT. 2052, 80 L.Ed.2d 674; see also In re Resendiz (2001) 25 Cal.4th 230, 239) A defendant’s “assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’” (Resendiz, at p. 253.) Here, defendant has failed to corroborate his bare assertion with independent, objective evidence demonstrating likelihood he would have insisted on going to trial. The record is clear that defendant pled guilty to avoid a three-strikes sentence or a “much heavier sentence.” Indeed, at the sentencing hearing, the judge specifically informed defendant that the mandates of section 1170 were not complied with here “because it was a negotiated plea agreement to arrive at a number of years that was substantially less than the time that [defendant] would have spent had he not entered into the agreement.”
We also reject defendant’s claim that his appellate counsel was ineffective for failing to discover meritorious issues. Appellate counsel has the duty to prepare a legal brief containing citations to the appellate record and appropriate authority. Counsel must set forth all arguable issues and cannot argue the case against his or her client. To establish ineffective assistance of counsel, however, the defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) prejudice from counsel’s unprofessional errors. (Strickland v. Washington, supra, 466 U.S. at p. 694.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
The fact that appellate counsel followed the procedure set forth in People v. Wende, supra, 25 Cal.3d 436 is insufficient, by itself, to show appellate counsel has been ineffective. Defendant has failed to meet his burden of proof on this issue. After our own independent review of the record, we have concluded no reasonably arguable legal or factual argument exists. Appellate counsel’s filing of a Wende brief was not unprofessional.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.