Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. RIF137142 Thomas H. Cahraman, Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Manuel Miguel Cordova appeals following a guilty plea to attempted murder without premeditation or deliberation (Pen. Code, §§ 664, 187) and making a criminal threat (§ 422). We affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On June 27, 2007, defendant was charged with kidnapping to commit robbery or rape (§§ 209, subd. (b)(1), 289), while personally inflicting great bodily injury on the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8) (count 1)), and torture (§ 206 (count 2)). Prior conviction allegations included two prior prison terms (§ 667.5, subd. (b)); a prior serious felony (§ 667, subd. (a)); and a prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
On December 5, 2007, two additional charges were added by oral amendment: count 3, attempted murder without premeditation or deliberation (§§ 664, 187), and count 4, making a criminal threat (§ 422). Pursuant to a plea agreement, defendant pled guilty to both of these new counts and admitted the prior prison term allegation in exchange for the dismissal of all remaining counts and prior conviction allegations. Defendant admitted on the record there was a factual basis for the charges and stated he understood he was pleading guilty to two strike offenses.
On April 25, 2008, the court followed the plea agreement and sentenced defendant to the upper term of nine years on count 3 and to the middle term of two years on count 4 to be served concurrently with the term on count 3. The court then added one more year as a result of the prior prison term, for a total of 10 years in state prison. In addition, the court struck the remaining counts and prior conviction allegations as provided in the plea agreement.
DISCUSSION
On June 17, 2008, defendant executed a notice of appeal, which was filed in the superior court on July 11, 2008. We appointed counsel to represent defendant on appeal. Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief, which he failed to do.
On his notice of appeal form, defendant indicated he intended to challenge the validity of his plea. As a result, he requested a certificate of probable cause from the trial court pursuant to section 1237.5. In his request, defendant represented he wished to challenge the validity of his plea based on ineffective assistance of counsel. The request also states as follows: “I never received all my discovery and I learn now things I should of been told by my attorney at the time. There [is] a motion I could of put in to see all the evidence they got on me. My attorney never explained that to me.” Defendant’s request for a certificate of probable cause was denied by the trial court.
A cognizable claim of ineffective assistance of counsel requires a showing “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) “[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel’s performance prejudiced his defense. (Id. at p. 687.)In the context of a guilty plea, a defendant must show that, but forcounsel’s deficient performance, he would have rejected the plea offer and insisted on going to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 58-59.) Because a defendant must prove deficient performance and prejudice, courts may reject an ineffective assistance of counsel claim if it finds counsel’s performance was reasonable or the claimed error was not prejudicial. (Strickland, supra, 466 U.S. at p. 687.) On direct appeal, a defendant cannot prevail on a claim of ineffective assistance of counsel “unless the appellate record makes clear that the challenged act or omission was a mistake beyond the range of reasonable competence.” (People v. Montiel (1993) 5 Cal.4th 877, 911.)
Here, the record does not clearly show defense counsel made an unreasonable mistake. Even if we assume for purposes of analysis that counsel made a mistake by failing to adequately advise defendant about discovery matters, defendant has not alleged a cognizable claim of ineffective assistance of counsel, because he has not alleged prejudice. Nor is there any basis on the record to even suggest defendant could have been prejudiced by counsel’s alleged failure to adequately advise him on discovery matters. Defendant admitted a factual basis for the plea on the record. His sentencing exposure for all of the charges against him plus the prior conviction allegations was considerably higher than the sentence he agreed to as part of the plea agreement. The trial court followed the plea agreement when it dismissed all remaining counts and prior conviction allegations and sentenced defendant to 10 years in state prison. Without more, there is no reason to conclude defendant would have had any reason to reject the plea and to insist on going to trial based on adequate advice about available discovery procedures. Our independent examination of the entire record revealed no other arguable issues exist.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.