From Casetext: Smarter Legal Research

People v. Pollard

Court of Appeals of California, Fourth District, Division One.
Nov 5, 2003
No. D041316 (Cal. Ct. App. Nov. 5, 2003)

Opinion

D041316.

11-5-2003

THE PEOPLE, Plaintiff and Respondent, v. KENNETH ROGER POLLARD, Defendant and Appellant.


In superior court case No. SCE200527, Kenneth Roger Pollard entered a negotiated guilty plea to battery causing serious bodily injury. (Pen. Code, § 243, subd. (d).) The court suspended imposition of sentence and placed him on three years probation. The court revoked probation after hearing evidence at the preliminary hearing in case No. SCE223534. It sentenced Pollard to prison for the three-year middle term concurrent with the sentence in case No. SCE223534.

All statutory references are to the Penal Code.

In case No. SCE223534, Pollard entered a negotiated guilty plea to inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)) and admitted a strike prior (& sect;§ 667, subds. (b)-(i), 1170.12). The court sentenced him to prison for a stipulated four years (double the two-year lower term for inflicting corporal injury on a spouse or cohabitant with a strike prior) concurrent with the sentence in case No. SCE200527. The record includes a certificate of probable cause. (Cal. Rules of Court, rule 31(d).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Pollards guilty plea was constitutionally valid; and (2) whether the trial court abused its discretion in imposing the stipulated sentence.

Because Pollard entered guilty pleas, he cannot challenge the facts underlying the convictions. (& sect; 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.

We granted Pollard permission to file a brief on his own behalf. He has responded. Pollard contends he was denied effective assistance of counsel through his attorney failing to present evidence at the sentencing hearing of Pollards learning disability and not adequately investigating, and the guilty plea was not voluntary because Pollard was told he would go to prison for life if he did not accept the plea, and he was not receiving medication correctly at the time.

I

Counsel

Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsels acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; People v. Pope (1979) 23 Cal.3d 412, 425.) Here, since Pollard stipulated to the four-year sentence he was not prejudiced by counsels failure to present evidence of Pollards mental or learning problems at the sentencing hearing. The record does not reflect the extent of counsels investigation of the underlying charges. "Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance of counsel is more appropriately made in a petition for habeas corpus." (People v. Pope, supra, 23 Cal.3d at p. 426.)

II

The Plea

When Pollard entered his guilty plea to inflicting corporal injury on a spouse or cohabitant, he told the court he understood the plea and its consequences. He interrupted the court and asked it to explain a consequence he did not understand. After Pollards counsel told the court that she had gone over the plea with Pollard and he understood its terms, Pollard told the court he understood what counsel told him. When reviewing an appeal, we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Pollard wishes to contest his guilty plea, he must do so by a petition for writ of habeas corpus filed in the trial court.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues raised by Pollard in his supplemental brief, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Pollard on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: NARES, J. and HALLER, J.


Summaries of

People v. Pollard

Court of Appeals of California, Fourth District, Division One.
Nov 5, 2003
No. D041316 (Cal. Ct. App. Nov. 5, 2003)
Case details for

People v. Pollard

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENNETH ROGER POLLARD, Defendant…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 5, 2003

Citations

No. D041316 (Cal. Ct. App. Nov. 5, 2003)