Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC954642.
Duffy, J.
Defendant Leonel Gutiérrez appeals from a judgment of conviction following his no contest pleas to sexual offenses against minors. Appellate counsel for defendant filed this appeal in accordance with procedures outlined in People v. Wende (1979) 25 Cal.3d 436, with counsel requesting this court to conduct an independent review of the record. Counsel has filed an opening brief that states the case and facts but raises no issues. Defendant, as he is entitled to do, filed his own letter brief; he filed two of them. We have, as required by Wende and People v. Kelly (2006) 40 Cal.4th 106, 110, 124, set forth herein the facts, the procedural background (including a description of the crimes of which defendant was convicted), and the disposition of defendant’s case; reviewed the entire relevant record; and considered defendant’s arguments.
We will affirm the judgment.
PROCEDURAL BACKGROUND AND FACTS
I. Statement of the Case
Defendant pleaded no contest to five counts of forcible lewd conduct with a minor under the age of 14 years (Pen. Code, § 288, subd. (b)(1)) and six counts of nonforcible lewd conduct with a minor under the age of 14 years (Pen. Code, § 288, subd. (a)). A plea agreement called for defendant to serve 24 years in state prison and the trial court sentenced him to that term, also imposing various fines and fees.
At the hearing scheduled for sentencing, defendant told the trial court that he had prepared his own motion to withdraw his plea. Defense counsel said he believed there might be a conceivable legal basis for a motion to withdraw a plea, but it was a close call and counsel implied that such a motion would be of questionable merit. He suggested that the court appoint conflict counsel or hold a Marsden hearing, i.e., consider the motion as a motion to replace current counsel with new counsel, as authorized by People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court chose to treat the motion to withdraw the plea as a Marsden motion and held a closed hearing.
During the Marsden hearing and in papers filed therefor, defendant told the trial court that it should permit him to withdraw his plea because the victims had recanted their inculpatory statements in letters to the probation officer. (See post, p. 4.) Counsel explained that although the letters were written following defendant’s no contest plea, the victims had modified their initial allegations only slightly, and in any event the essence of the information they were providing in their letters was available to defendant and defense counsel before defendant entered his plea. “It wasn’t identical... but it was similar..., [so] that he and I discussed... the case... and determined that even with information that was similar to that, it was still by far in his best interest to accept the offer for the 24 years.” Moreover, counsel observed, “What we discussed before was actually a better situation than what’s presented in those letters”-by which counsel appears to have been explaining that when defendant agreed to the plea agreement he did so on the basis of less inculpatory information than the letters had made available to the prosecution.
Defendant, the trial court noted during this discussion, was facing 54 years’ imprisonment if convicted on all charges following a trial, and the minimum possible term the court could impose in that situation was 18 years.
At the end of the Marsden hearing, everyone, including defendant personally, implicitly or explicitly agreed that there was no remaining motion to withdraw the plea. The trial court denied the Marsden motion and the case proceeded immediately to sentencing.
Defendant sought a certificate of probable cause (Pen. Code, § 1237.5), but the trial court denied the request.
II. Facts
Because defendant pleaded no contest to the charges, we take the facts from the probation report.
According to that report, the younger victim, defendant’s 12-year-old niece, told police officers that defendant engaged in numerous sexual touchings of her. He would touch her breasts over and under her clothing, and touched her buttocks five times and her genitals twice. He once seized hold of her hand in an effort to force her to touch his penis.
The older victim, defendant’s 13-year-old niece and the younger victim’s sister, said at first that defendant forced her to have sexual intercourse with him between one and five times. She later acknowledged that the sexual relationship had been more extensive. For about a year, she consented to sexual intercourse with defendant three or four times a week, and incidents of digital penetration of the vagina and anus and oral copulation occurred. She had feelings for defendant and initiated the sexual encounters on three occasions.
Defendant admitted to the police that he knew that the 13-year-old victim was 13 years old. He admitted to engaging in sexual intercourse with the 13-year-old victim about two or three times per week, beginning when she was 12 years old, and to engaging in other sexual misconduct with her. He asserted that she initiated the encounters. With regard to the 12-year-old victim, defendant said that he touched her breasts for about two months and her genitals once, always over her clothes, and he acknowledged that she would resist. He admitted that he tried to have her touch his penis. He wrote an apology to the victims’ parents.
The victims wrote the probation officer that they felt a 24-year sentence was excessive. The 13-year-old victim stated that she had initiated the encounters and did not want defendant to be imprisoned, at least for a long prison term. The 12-year-old victim stated that although she had informed on defendant because she was “mad of what my uncle... was doing to my sister, ” she also wanted defendant to receive a reduced sentence or none at all.
DISCUSSION
Defendant contends that an investigating detective was not truthful with him and that from the outset family members did not want to press charges against him, leading to miscarriages of justice. These matters, and any other contentions bearing on events preceding defendant’s no contest pleas that may be gleaned from or are implicit in defendant’s two letters, are not properly before us. Because defendant did not succeed in obtaining a certificate of probable cause, our review is limited to grounds for appeal that occurred after entry of defendant’s guilty plea and do not affect the plea’s validity. (See Cal. Rules of Court, rule 8.304(b)(1), (b)(2), (b)(4)(B).)
In the main, however, defendant claims that he received ineffective assistance of counsel. He argues that effective counsel would have secured a less onerous sentence for him during plea negotiations, given the forgiving attitudes of the victims and other family members. He declares that the victims and their families did not want to press charges against him at all.
“The pleading-and plea bargaining-stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions.” (In re Alvernaz (1992) 2 Cal.4th 924, 933.)
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to any claim by a defendant under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.) We assume that defendant has made both claims.
In the context of a guilty or similar no contest plea, “in order successfully to challenge [it] on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial..” (In re Alvernaz, supra, 2 Cal.4th at p. 934.) As the court in In re Vargas (2000) 83 Cal.App.4th 1125, 1140 explained, “when defendants claim they received ineffective assistance of counsel at the plea bargain stage, they must show that had they received effective representation, they would not have accepted the offer. [Citations.] A defendant’s statement to that effect is not sufficient. Rather, there must be some objective showing.”
Defendant does not dispute that counsel secured a 24-year prison term for him and that this term represents almost the minimum that the trial court could impose and 30 years less than a 54-year term he could receive if convicted following a trial. Ineffective assistance of counsel claims, as with other claims on a direct appeal, may rely only on “the four corners of the record” (People v. Cunningham (2001) 25 Cal.4th 926, 1003)-that is, an appellate court cannot consider extraneous matters at this stage, such as whether the victims’ purported attitudes at the time defendant entered his plea and the purported attitudes of family members at that time might have affected the course of a trial. On this record, there is nothing to show that defendant’s 24-year prison term is the product of ineffective assistance of counsel.
We also discern in defendant’s two letters a claim that his sentence is grossly disproportionate to the quality of his misconduct. This proportionality claim, it seems to us, is entertainable despite the lack of a certificate of probable cause. We have been able to find no authority to the contrary.
Treating the claim on the merits, however, we see no reason to afford defendant relief.
“The Eighth Amendment to the federal Constitution contains a ‘narrow proportionality principle’ that applies to noncapital sentences by which a court determines whether a sentence constitutes cruel and unusual punishment. [Citation.] ‘ “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” [Citation.]’ [Citation.] To apply this principle, courts compare the gravity of the offense with the magnitude of the penalty. [Citation.] The gravity of the offense also takes account of the defendant’s recidivism and the Legislature’s choice of sanctions. [Citation.] [¶] The California Constitution’s prohibition of cruel or unusual punishment similarly prohibits imposing a criminal sentence which is ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ ” (People v. Johnson (2010) 183 Cal.App.4th 253, 296.)
The crimes in this case involved numerous intolerable sexual impositions on girls who were 12 and 13 years old and with whom defendant occupied a position of trust as their uncle. We find no unconstitutional gross disproportionality in the sentence imposed.
Finally, our own review of the record before us discloses no arguable issue on appeal beyond those that defendant has raised in his letter briefs.
CONCLUSION
On review of the record, we find no prejudicial error or ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR. Rushing, P. J., Grover, J.
Judge of the Monterey County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.