Opinion
F061523 Super. Ct. No. VCF163160
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. RENE GONZALEZ, JR., Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Dawson, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On September 13, 2006, appellant, Rene Gonzalez, Jr., entered into a plea agreement and pled nolo contendere to felony possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1), count one), felony vandalism (§ 594, subd. (a), count two), and misdemeanor resisting arrest (§ 148, subd. (a)(1), count four). Appellant also admitted an allegation that he committed a prior serious felony within the meaning of the three strikes law. On October 17, 2006, following the terms of the plea agreement, the trial court sentenced appellant to prison for three years eight months. The court struck the serious felony allegation, suspended execution of the sentence, and placed appellant on felony probation for five years.
Unless otherwise indicated, all statutory references are to the Penal Code.
On August 6, 2010, appellant denied allegations that he violated the terms of his probation. New misdemeanor allegations were filed against appellant alleging that he resisted an executive officer (§§ 69, 17, subd. (b)) and was under the influence of drugs or alcohol in public in violation of his probation (§ 647, subd. (f)). On September 7, 2010, the trial court took judicial notice of two unrelated criminal actions in which appellant admitted misdemeanor allegations. The court found appellant willfully violated his probation by failing to obey all laws.
After a stipulation from the parties, we issued an order on May 3, 2011, amending entries in the clerk's minute order of September 7, 2010. We stated in our order that appellant was not advised of his rights and asked to waive them, and did not admit violating his probation.
On October 6, 2010, the court denied appellant's request to reinstate probation and lifted the stay of execution on appellant's sentence. Appellant was committed to prison for three years eight months. The court awarded custody credits of 64 days and conduct credits of 64 days for total custody credits of 128 days. Appellant filed a timely notice of appeal. The trial court denied appellant's request for a certificate of probable cause. Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
The original abstract of judgment inaccurately stated that appellant received actual custody credits of 94 days, rather than 64 days, but accurately stated that appellant's conduct credits are 64 days and his total credits are 128 days. After a request from appellate counsel, the trial court ordered an amendment to the abstract of judgment indicating that appellant had actual custody credits of 64 days and total custody credits of 128 days.
On October 5, 2011, we received another amendment to the abstract of judgment from the trial court. The original abstract of judgment indicated that appellant was convicted of possession of a firearm in violation of section 12020, subdivision (a)(1). The amendment states appellant was convicted of possession of a deadly weapon in violation of section 12020, subdivision (a)(1).
APPELLATE COURT REVIEW
Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on September 15, 2011, we invited appellant to submit additional briefing.
Appellant replied with two letters stating that he has a learning disability and because of this disability appellant admitted the possession of a weapon allegation as a felony rather than as a misdemeanor. Appellant also asserts that his attorneys were ineffective.
There are multiple procedural bars to appellant's assertions of error. First, appellant failed to appeal from his convictions in 2006 within 60 days and cannot now complain, over four years later, about matters related to his original conviction. When execution of a sentence is stayed, and the appellant is placed on probation, the trial court's order is appealable. (Cal. Rules of Court, rule 8.308(a); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.)
Appellant further failed to obtain a certificate of probable cause. We therefore cannot review any matters involving a challenge to the validity of appellant's plea. (People v. Panizzon (1996) 13 Cal.4th 68, 77-79.) This includes appellant's challenge to the effectiveness of his original trial counsel in 2006. (People v. Emery (2006) 140 Cal.App.4th 560, 564-565.)
The remaining challenge that is reviewable on appeal is appellant's assertion that his current trial counsel representing him during the violation of probation proceedings was ineffective.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Appellant has failed to demonstrate that his counsel's representation fell below professional norms. After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.