Opinion
C092663
06-09-2021
THE PEOPLE, Plaintiff and Respondent, v. ROGER DAVID KUYKENDALL, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 20F1864, 20F2353
BLEASE, ACTING P. J.
Appointed counsel for defendant Roger David Kuykendall filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
Convicted of a registerable sex offense in 1985, defendant was required to register as a transient pursuant to Penal Code section 290.011. In April 2019, he moved without registering. Thus, in Shasta County Superior Court case No. 20F1864, the People charged defendant with failing to register in violation of section 290.011. The People further alleged defendant was previously convicted of three strike offenses. (§ 1170.12.)
Undesignated statutory references are to the Penal Code.
Then, in November 2019, he failed to register within five days of being released from custody. As a result, in Shasta County Superior Court case No 20F2353, the People charged defendant with failure to register upon release from custody in violation of section 290.015. Again, the People alleged defendant was previously convicted of three strike offenses. (§ 1170.12.)
Defendant pleaded no contest to failing to register as a transient in case No. 20F1864, and no contest to failing to register upon his release from custody in case No. 20F2353. In both cases, defendant also admitted to being convicted of a prior strike offense. In exchange for his plea, the remaining enhancement allegations were dismissed. The court subsequently denied defendant's Marsden motion, and sentenced defendant to seven years four months in state prison.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant appealed and the trial court denied his request for a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed.
Defendant filed a supplemental brief, arguing that his due process rights were violated because he was “in and out of the Shasta County jail on parole violations, in and out of the Redding Police Department to register (PC 290) and the warrant was never brought up until I was notified a year later.” He also contends his trial counsel was ineffective because he “did not try to help me fight my case.”
Absent the issuance of a certificate of probable cause, on appeal a defendant may only challenge the denial of a motion to suppress evidence or postplea issues not undermining the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 74.) Section 1237.5 should be applied in a “strict manner” and a defendant “may not obtain review of certificate issues unless he has complied with section 1237.5.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098, 1099.)
In substance, defendant is challenging the validity of his convictions and therefore the validity of his plea. (People v. Panizzon, supra, 13 Cal.4th at p. 76 [to determine whether § 1237.5 applies, “the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5”].) Because the trial court denied defendant's request for a certificate of probable cause, defendant cannot challenge his convictions on appeal.
Defendant also asserts that, prior to sentencing, he sent a letter to trial counsel to “ask the judge if [defendant] could be placed into a drug and alcohol treatment program as an alternative to prison.” He contends trial counsel was ineffective for failing to raise that issue with the court.
To establish ineffective assistance of counsel, the defendant has the burden of demonstrating that counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and he or she was prejudiced by that deficiency. (People v. Lopez (2008) 42 Cal.4th 960, 966.) “ ‘Unless a defendant establishes the contrary, we shall presume that “counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged, ” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.]' ” (Ibid.) “A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claims properly resolved on direct appeal only where record affirmatively discloses no rational tactical purpose for counsel's act or omission].)
First, the record does not contain the letter defendant claims to have sent to trial counsel asking him to discuss alternate sentencing with the trial court. Second, assuming that letter was sent and received, the record also is silent as to trial counsel's strategy in not raising the issue of alternate sentencing with the trial court. Defendant's ineffective assistance of counsel claim thus fails on direct appeal.
Finally, defendant argues that his sentence violates his Eighth Amendment right to be free from cruel and unusual punishment. Because defendant failed to make the contention that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment in the trial court, however, he has forfeited the issue on appeal. (People v. Baker (2018) 20 Cal.App.5th 711, 720; People v. Speight (2014) 227 Cal.App.4th 1229, 1248; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Having also undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.