Opinion
D070596
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES NEMETH, Defendant and Appellant.
William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD259409) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In January 2016, James Nemeth entered a guilty plea to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a)), three counts of child abuse (§ 273a, subd. (a)), and three counts of corporal injury to a child (§ 273 d, subd. (a)). Nemeth also admitted an allegation of personally inflicting great bodily injury (§ 12022.7, subd. (d)). The remaining counts and allegations were dismissed as part of the plea agreement.
All further statutory references are to the Penal Code unless otherwise specified. --------
In March 2016, Nemeth requested and was granted permission to represent himself. In May 2016, Nemeth moved to withdraw his guilty pleas, which motion was denied in June 2016. The court sentenced Nemeth to a determinate term of 29 years eight months in prison.
Nemeth filed a timely notice of appeal. The court issued a certificate of probable cause. (§ 1237.5.)
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any arguable issue for reversal on appeal. Counsel requests this court review the record on appeal for error as mandated by Wende. We offered Nemeth the opportunity to file his own brief on appeal but he has not responded.
STATEMENT OF FACTS
In May 2012, Nemeth twice shook a child, inflicting great bodily injury on him and ultimately his death. Between February 2013 and October 2014, Nemeth inflicted unjustifiable physical pain on two other children.
In January 2016, Nemeth entered the guilty pleas in this case as part of a plea agreement. Shortly after the plea, Nemeth wrote to the trial court renouncing his pleas and asserting counsel had coerced him.
In March 2016, the court granted Nemeth's request to represent himself. Nemeth thereafter moved to withdraw his guilty plea.
The trial court held an evidentiary hearing on the motion. After hearing testimony from both sides and considering the moving papers, the court denied the motion. During the process, the court also denied Nemeth's belated request to have counsel appointed. The court found the request by Nemeth, who had been represented by four different attorneys, to be for purposes of delay and denied the request.
DISCUSSION
As we have discussed, appellate counsel has filed a Wende brief, asking this court to review the record for error. Unfortunately, counsel has failed to comply with Anders v. California (1967) 386 U.S. 738 (Anders). Counsel has not listed any possible issues for our consideration. While we do not approve of such briefing, counsel has extensively discussed the factual circumstances surrounding the guilty pleas, the motion to withdraw those pleas and Nemeth's late request to have yet another counsel appointed during the pending motion to withdraw the pleas. From such materials, it is apparent there are two possible issues in this record: (1) whether the court should have again appointed counsel for Nemeth; and (2) whether the court should have granted the motion to withdraw the guilty pleas.
After a thorough review of the record, we find nothing that would make the issues we have identified reasonably arguable grounds for reversal on appeal. Nor have we identified any other reasonably arguable issues for reversal in this record.
Notwithstanding counsel's failure to comply with Anders, supra, 386 U.S. 738, we are satisfied that counsel provided effective representation on this appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
AARON, J.