People v. Payne

Full title: THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CURTIS PAYNE, Defendant…

Court: California Court of Appeals, Fourth District, First Division

Date published: Sep 17, 2009

No. D054570 (Cal. Ct. App. Sep. 17, 2009)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CURTIS PAYNE, Defendant and Appellant. D054570 California Court of Appeal, Fourth District, First Division September 17, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD210206, John S. Einhorn, Judge. Affirmed.

BENKE, J.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2008 William Curtis Payne was charged with four drug-related offenses (counts 1-4), four firearms-related offenses (counts 5-8) and one count each of owning and operating a chop shop (count 9), possession of a stolen vehicle (count 10) and receiving stolen property (count 11). The amended felony complaint also alleged that Payne had suffered convictions of two serious or violent felonies (residential burglary and assault with a deadly weapon) in 1979 and two more such felonies (both residential burglary) in 1994.

In a nonjury trial, Payne pleaded guilty to two of the drug-related offenses (counts 1-2) and the prosecution dismissed the chop shop and stolen vehicle counts (counts 9-10). Thereafter the court acquitted Payne of one drug count (count 4) and one firearm count (count 5), but found him guilty of the remaining offenses (counts 3, 6-8 and 11). Based on Payne's admissions that he suffered the 1979 and 1994 felony convictions, the court found true the strike enhancement allegations.

Prior to the sentencing hearing, Payne made a motion to strike the 1979 and 1994 strikes, which the court denied. Thereafter the court sentenced Payne to an indeterminate term of 25-years-to-life on count 3, plus identical concurrent terms on counts 1, 6-8 and 11 and an identical indeterminate term, stayed, as to count 2. He appeals.

DISCUSSION

Payne's appointed appellate counsel has filed a brief setting forth the evidence in the superior court and presenting no argument for reversal but asking this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to the following possible, but not arguable, issues: (1) whether there was sufficient evidence to support the guilty verdicts on counts 3, 6-8 and 11; and (2) whether the court erred in ordering concurrent rather than stayed sentences on counts 6 (felon in possession of a revolver), 7 (felon in possession of a semi-automatic handgun) and 8 (felon in possession of ammunition).

We granted Payne permission to file a brief on his own behalf and he responded, contending that the sentencing court violated the prohibition against ex post facto laws in characterizing his 1979 convictions as strikes under the Three Strikes law. He also contends that he is entitled to habeas corpus relief because (1) the court's finding that each of the 1994 convictions counted as a separate strike violated his plea agreement in the underlying case (CR 142621), as described in Davis v. Woodford (9^th Cir. 2006) 446 F.3d 957; (2) he suffered ineffective assistance in the criminal proceedings that resulted in his 1994 convictions because his counsel advised him to plead guilty to those offenses even though Penal Code section 1192.7, subdivisions (a) and (c), preclude a plea of guilty to a serious felony; and (3) he suffered ineffective assistance of counsel in the current proceedings insofar as his counsel advised him to waive his right to a jury trial on the strike enhancements.

Payne's argument that the application of the Three Strikes law to his 1979 convictions was unconstitutional on ex post facto grounds is without merit. (See People v. Helms (1997) 15 Cal.4^th 608, 611; People v. Hatcher (1995) 33 Cal. App.4^th 1526, 1527 [recognizing that the "use of a serious prior conviction committed prior to [the enactment of the Three Strikes law] to enhance defendant's sentence did not violate the ex post facto provisions of the federal and state Constitutions."].) Further, to the extent that Payne raises other arguments as a basis for the issuance of habeas corpus relief, these arguments are not cognizable on appeal. (See People v. Stanley (2006) 39 Cal.4^th 913, 954 [ineffective assistance]; People v. Silvey (1997) 58 Cal. App.4^th 1320, 1329 [recognizing that ineffective assistance claims "are rarely cognizable on appeal"].)

We have reviewed the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436 and considered the possible issues referred to by counsel; we find no reasonably arguable appellate issue and conclude that Payne has been represented by competent counsel on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J., HALLER, J.