Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 09CM4023. James T. LaPorte, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Poochigian, J.
STATEMENT OF THE CASE
After waiving his right to a preliminary hearing, appellant, Louis Joseph Jaramillo, was charged in an information filed on February 3, 2010, with selling, furnishing, or transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a), count one), possession for sale of methamphetamine (Health & Saf. Code, § 11378, count two), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count three). The information further alleged two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), and with respect to each count, that appellant had been previously convicted of Health and Safety Code section 11378, pursuant to Health and Safety Code section 11370.2, subdivision (c).
Unless otherwise designated, all statutory references are to the Penal Code.
On February 25, 2010, appellant entered into a plea agreement in which he would admit count two in exchange for a stipulated prison sentence of two years and the remaining allegations would be dismissed. The court advised appellant of the consequences of his plea. The court explained and appellant waived his constitutional rights pursuant to Boykin/Tahl. The parties stipulated to a factual basis for the plea based on the police reports, appellant pled guilty to count two, and the court granted the prosecutor’s motion to dismiss the remaining allegations. Appellant also waived a right to a hearing for violations of probation based on the current offense.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On March 3, 2010, the court sentenced appellant to state prison for two years. The court initially refused to grant any custody credits because the court understood appellant was on a parole hold. Appellant objected, explaining he had been released from parole 10 days before his arrest. The court instructed appellant to appear the next day with paperwork showing his parole status.
On March 4, 2010, appellant brought documents concerning his parole discharge to court. Defense counsel, however, conceded the documents did not clarify the issue. Although appellant produced a document from a unit supervisor dated December 21, 2009, indicating that the controlling discharge date was December 28, 2009, later documents reflect he was not actually discharged. The court set the matter for May 3, 2010, to determine whether appellant had been discharged from parole at the time of his arrest. Appellant waived his appearance for the continued hearing.
Appellant filed a timely notice of appeal on March 15, 2010. The trial court denied appellant’s request for a certificate of probable cause.
On May 3, 2010, defense counsel represented to the court that on March 18, 2010, there was a parole board hearing. The parole board dismissed the underlying parole violation allegations for lack of jurisdiction. The court calculated appellant’s custody credits, including good time credits, at 69 days up to and including January 24, 2010. The court then added 38 actual custody credits, plus 38 good time credits, for the period between January 25, 2010, the operative date of the amended provisions of section 4019, and sentencing on March 4, 2010. The court granted a total of 145 days of custody credits.
On June 4, 2010, the trial court filed a second amended abstract of judgment reducing appellant’s custody credits to 131 days. On August 3, 2010, appellate counsel requested that the trial court consider granting appellant full retroactive custody credits for the entire time he was in custody between December 2009 and his sentencing in March 2010. The trial court agreed with appellate counsel’s assessment and awarded total custody credits of 153 days in a third amended abstract of judgment filed on September 20, 2010.
FACTS
On December 18, 2009, as darkness approached, Hanford Police officers noticed a car without an illuminated license plate light and pulled it over. Appellant was the passenger. A check for warrants determined that appellant was an at large parolee with a parole hold. Officers searched the vehicle and found methamphetamine, a digital scale, and a knife. After being advised of and waiving his Miranda rights, appellant stated that he and the driver were delivering methamphetamine to someone.
Miranda v. Arizona (1966) 384 U.S. 436.
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. (People v. Wende (1979) 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 30, 2010, we invited appellant to submit additional briefing.
Appellant replied with a letter challenging his trial counsel for not filing motions, including a suppression motion. Appellant argued the factual circumstances surrounding his detention and arrest. Appellant also challenged the veracity of the police reports, claimed he was set up by the codefendant, and suggested the officers threw drugs into the car after three searches.
Appellant’s first challenge can be liberally construed to be a challenge to the effectiveness of his trial counsel. 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 decision making 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 counsel’s conduct was professionally deficient or that he would have prevailed on additional motions, including a suppression motion. We reject any challenges to defense counsel’s effectiveness.
We also reject appellant’s challenges that there was a sufficient factual basis to the plea. A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) The plea supplies both evidence and verdict and is deemed to be an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)
Finally, we note that appellant failed to obtain a certificate of probable cause. He cannot, therefore, challenge the underlying basis for the plea or the terms of the plea agreement itself. (See People v. Panizzon (1996) 13 Cal.4th 68, 77-79.)
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.