Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. SA064210 and SA064252, Stephanie Sautner and Scott Millington, Judges.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
William Pendergraph entered a negotiated plea of no contest to a charge of attempted grand theft and admitted a prior conviction under the “Three Strikes” law. In conformity with the plea agreement, the trial court sentenced Pendergraph to a second strike term of three years in prison. Pendergraph’s plea was based on a May 24, 2007 incident in which he was captured by construction workers after they saw him loading a soil-compacting tool into his van at a construction site. The tool belonged to the construction company working at the site. In exchange for the plea, Pendergraph was allowed to plead to a lesser included offense of a grand theft charge. In exchange for the plea, two counts of assault with a deadly weapon, one count of second degree burglary, and one count of petty theft with a prior were dismissed, as were allegations that he suffered a prior serious felony (Pen. Code, § 667, subd. (a)(1)) and served five prior prison terms within the scope of Penal Code section 667.5, subdivision (b).
Appellant obtained a certificate of probable cause and filed a timely appeal. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On July 29, 2008, we advised appellant he had 30 days within which to personally submit any contentions or issues he wished us to consider. Appellant filed a letter brief raising several points for our consideration.
Appellant attached to his letter brief photocopies of a vehicle impound report, a diagram, and photographs of a van. He relies upon these attachments and a police report, none of which are in the appellate record, to argue that Anthony Meza and Roc Schoonover falsely testified at the preliminary hearing that appellant struck their vehicles with his van. This court may not consider matters outside the appellate record. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
Appellant also argues that neither the court nor his attorney provided him with the photographs attached to his letter brief, despite his requests for them. Appellant has not shown that the trial court had possession of the photographs or suggested any basis for a conclusion that the court was obliged to give the photographs to appellant. Appellant’s claim regarding his attorney, however, suggests an ineffective assistance of counsel theory. A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Assuming, for the sake of argument, that defense counsel erred by failing to provide appellant with the photographs in question, appellant has not shown a reasonable probability that he would have obtained a more favorable result if he had received the photographs. The testimony of Meza and Schoonover that appellant struck the victims’ vehicles with his van was the basis for the two aggravated assault charges against appellant. However, these charges were dismissed as a result of appellant’s negotiated plea. Appellant’s grand theft conviction was based upon different conduct. Appellant could not use the photographs to defend against the grand theft charge.
We have examined the entire record and are satisfied that Pendergraph’s counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.