Opinion
F080955
06-01-2021
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN MITCHELL, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F19907195. Heather Mardel Jones, Judge.
John L. Staley, under appointment by the Court of Appeal, Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appointed counsel for appellant David Allen Mitchell asked 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).) Mitchell was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. This court received and filed letter briefs from Mitchell on August 31, 2020, September 28, 2020, and on January 12, 2021. Following our independent review of the record and after consideration of the arguments raised in Mitchell's supplemental briefs, we find no arguable error that would result in a disposition more favorable to Mitchell. We affirm.
BACKGROUND
On October 23, 2019, the Fresno County District Attorney's Office filed a criminal complaint charging Mitchell with negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a), count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2), and carrying a loaded firearm in public (§ 25850, subd. (a), count 3).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
On December 3, 2019, Mitchell entered a plea of no contest to count 2 of the complaint. In view of his plea, the People offered a three-year sentencing lid, and dismissed counts 1 and 3 in the interests of justice. The parties stipulated to a factual basis for the plea. In addition, Mitchell admitted that on October 5, 2019, he was in possession of a firearm in violation of section 29800, subdivision (a)(1), and that he had suffered prior felony convictions as described in the complaint.
On January 16, 2020, the trial court sentenced Mitchell to a determinate term of 16 months in state prison. In addition, the trial court imposed various fines and fees without objection by Mitchell.
On March 16, 2020, Mitchell filed a timely notice of appeal. He did not request a certificate of probable cause.
DISCUSSION
Following our independent review of the record, we find that no reasonably arguable factual or legal issues exist. In addition, we have considered the assertions raised by Mitchell in his supplemental briefs. For the reasons discussed below, we conclude his contentions are without merit.
In his first supplemental brief, Mitchell sets forth a statement of facts pertaining to the incident resulting in his conviction. Insofar as Mitchell purports to offer an alternative, exculpatory version of events, his no contest plea “precludes appellate consideration of issues resulted to guilt or innocence.” (People v. Palmer (2013) 58 Cal.4th 110, 114.)
“A guilty [or no contest] plea admits every element of the charged offense and constitutes a conviction.” (In re Chavez (2003) 30 Cal.4th 643, 649.) “It waives a trial and obviates the need for the prosecution to come forward with any evidence. [Citations.] A guilty plea thus concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility, and this is true whether or not the subsequent claim of evidentiary error is founded on constitutional violations. [Citation.] By pleading guilty a defendant ‘[waives] any right to question how evidence had been obtained just as fully and effectively as he [waives] any right to have his conviction reviewed on the merits.' ” (People v. Turner (1985) 171 Cal.App.3d 116, 125-126, fn. omitted.) Thus, Mitchell's additional contentions claiming that law enforcement officers ignored his requests to speak to an attorney and that various individuals committed perjury during court proceedings, are beyond the scope of our review.
Mitchell further contends his trial counsel provided assurances that Mitchell would receive probation at sentencing, that his conviction would be reduced to a misdemeanor, and that he would be released from custody at an earlier date. The record does not corroborate his assertions. “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' ” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
Additionally, Mitchell appears to argue trial counsel failed to file a notice of appeal on his behalf. The record belies his assertion, as the instant appeal is currently before this court. To the extent trial counsel failed to request a certificate of probable cause, even assuming error, nothing upon this record supports the conclusion that Mitchell suffered prejudice as a result.
In his second supplemental brief, Mitchell alleges the Fresno Police Department and the Fresno County District Attorney's Office withheld evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). According to Mitchell, the Brady evidence in question is a text message sent by a third party to Mitchell. This text message does not appear within the record on appeal. “ ‘[O]ur review on direct appeal is limited to the appellate record.' ” (People v. Jenkins (2000) 22 Cal.4th 900, 952.) As “ ‘defendant's claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it.' ” (Ibid.)
Finally, in his third supplemental brief, Mitchell asks this court to execute an arrest warrant. This is not a remedy an appellate court can provide, nor do we have jurisdiction to review the trial court's denial of Mitchell's request for an arrest warrant.
The common thread between all of Mitchell's supplemental letter briefs appears to be based upon alleged misconduct by a third party. Our review however is limited to issues pertaining to Mitchell's criminal conviction.
DISPOSITION
The judgment of conviction is affirmed. [*] Before Detjen, Acting P.J., Franson, J. and Smith, J.