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People v. Everage

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E046613 (Cal. Ct. App. Apr. 3, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF143226, James T. Warren, Judge, and Bambi Moyer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Commissioner Moyer accepted defendant’s guilty plea, and Judge Warren imposed sentence.

Appellate Defenders, Inc. and Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

RAMIREZ P.J.

Introduction

Defendant John Dee Edward Everage appeals from his conviction of attempted stalking (Pen. Code, §§ 664, 646.9, subd. (a)). We find no error, and we affirm.

All further statutory references are to the Penal Code unless otherwise indicated.

Facts and Procedural Background

Defendant entered a plea of guilty to one count of attempted stalking (§§ 664, 646.9, subd. (a)). As the factual basis for his plea, he confirmed in open court that he willfully and unlawfully attempted to repeatedly follow, stalk, or maliciously harass Jane Doe and to make a credible threat that would put her in reasonable fear for her safety or that of her family. When he entered his plea, the court stated, “My expectation is you’re going to be receiving the low term of eight months in state prison . . . and that will run concurrently with any parole violation arising out of this particular case and may be served in any penal institution.” Defendant confirmed on the record that that was his expectation. The plea agreement states, “The custody term will be LT (8 months SP)” and “time to be served in any penal institution.” The trial court sentenced defendant to an eight-month prison term as indicated.

Defendant filed a request for a certificate of probable cause, stating that he “believed the 8 month term was a County Jail sentence not an 8 month prison term and yet another prison prior.” The trial court denied the request.

Discussion

After 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 two potential arguable issues and requesting this court to undertake a review of the entire record. The potential arguable issues were whether defendant’s guilty plea was constitutionally valid and whether defendant received ineffective assistance of counsel because counsel failed to inform him that his sentence must be served in state prison rather than county jail. We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

With respect to the first potential issue, “[a] defendant who has pleaded guilty . . . to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called ‘certificate’ issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 of the Penal Code and the first paragraph of [former] rule 31(d) of the California Rules of Court--which require him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment.” (People v. Mendez (1999) 19 Cal.4th 1084, 1088, fns. omitted.) Defendant failed to obtain such a certificate, and our review of the record indicates there was no basis for such a certificate. The trial court informed defendant of the indicated sentence of eight months in state prison before defendant entered his guilty plea, and defendant was sentenced consistently with that indication.

The second potential issue was whether defendant received ineffective assistance of counsel. To prevail on such a claim, a defendant must show that counsel’s performance fell below a standard of reasonable competence and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Dennis (1998) 17 Cal.4th 468, 540-541.)

Defendant contends his counsel failed to inform him that he would serve his sentence in state prison instead of in county jail. However, defendant cannot demonstrate that his counsel’s alleged deficient representation prejudiced him, i.e., that there is a reasonable probability that, but for counsel’s purported failing, defendant would have received a more favorable result (People v. Dennis, supra, 17 Cal.4th at pp. 540-541; Strickland v. Washington, supra, 466 U.S. at p. 687), because the trial court informed him of the same fact on the record.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.

Disposition

The judgment is affirmed.

We concur: KING J., MILLER J.


Summaries of

People v. Everage

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E046613 (Cal. Ct. App. Apr. 3, 2009)
Case details for

People v. Everage

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN DEE EDWARD EVERAGE…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 3, 2009

Citations

No. E046613 (Cal. Ct. App. Apr. 3, 2009)