Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06HF0259, Robert R. Fitzgerald, Retired Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
We appointed counsel to represent appellant on this appeal. While not arguing against appellant he filed a brief which set forth the facts of the case and advised us he was unable to find an issue to argue on appellant’s behalf. We have examined the record, and find ourselves likewise unable to identify any arguable issue. (People v. Wende (1979) 25 Cal.3d 436.)
We informed appellant he had 30 days to file written argument in his own behalf. He did so. In fact, he has filed several letters with this court, all of which we’ve read. We are nonetheless unable to find an arguable issue on appeal.
The judgment is therefore affirmed.
PROCEDURAL HISTORY
Appellate counsel accurately set forth the procedural history of this case, which is determinative of many of the complaints raised by appellant in his letters to this court. Appellant has not contested any of the procedural history his attorney set forth, so we adopt it here. As counsel explained:
In an information filed by the district attorney of Orange County on March 17, 2006, appellant, Nigel Reynolds, was charged in count 1 with assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1). Count 2 charged appellant with resisting an officer in violation of Penal Code section 148, a misdemeanor.
On May 1, 2006, appellant entered pleas of guilty to both counts. He was given a suspended local time sentence and placed on probation with various terms and conditions attaching.
Between June 12, 2006 and December 4, 2006, the Orange County probation department sought on at least four different occasions to revoke appellant’s probation based upon new violations of the law. The offenses involved were generally drunk in public in violation of Penal Code section 647, subdivision (f) and on one occasion trespassing in violation of Penal Code section 602. On each occasion, prior to January 31, 2007, appellant was continued on probation but sentenced to additional time in local custody.
On the most recent violation, a contested hearing took place on January 31, 2007. Following the taking of testimony and argument of counsel, the court found appellant again had violated his probation. The court sentenced appellant to the low term of two years in state prison and gave him credit for 408 days of presentence custody. On March 14, 2007, the court denied appellant’s motion to withdraw his previously entered guilty plea. On March 21, 2007, appellant filed a notice of appeal by letter. On March 26, 2007, the trial court denied his application for a certificate of probable cause.
FACTS
Appellant was found unconscious in a residential driveway at one in the morning. A partially empty whiskey bottle was found nearby. Appellant was difficult to rouse, and when finally brought to consciousness, his speech was slurred and he smelled strongly of alcohol. He was unable to stand without assistance. It was the opinion of the police officer called to the scene that he was intoxicated.
ISSUES
Appellant raises several complaints. He is a prolific letter-writer, and even visited this court with the intention of meeting with the justices to discuss his case in the interval between his felony conviction and his incarceration for probation violation. The more recent letters are written from prison, circumstances not conducive to cogent exposition, and his rather extensive history of alcohol-related offenses and medical problems makes it somewhat difficult at times to be sure which of his complaints applies to which brushes with the law. But we are nonetheless confident none of his complaints about this incarceration are cognizable on appeal. While he may have grounds for a writ of habeas corpus, he has presented us with nothing we can resolve on direct appeal. “Appellate jurisdiction is limited to the four corners of the record on appeal [citation].” (In re Carpenter (1995) 9 Cal.4th 634.) When reference to matters outside the record is necessary to establish that a defendant has been aggrieved, habeas corpus is the appropriate avenue for seeking relief. (In re Bower (1985) 38 Cal.3d 865, 872.)
Appellant first complains that the underlying felony offense (the aggravated assault) was based on insufficient evidence. He says he has now concluded the putative victim’s injuries were probably self-inflicted (he feels she did not realize she had done it to herself and blamed him mistakenly) and he never touched her. He has provided us with a lengthy assertion of the “true facts” of the case. But appellant pled guilty to that offense, no record of the facts of the offense is before us, and the time for complaining of it on direct appeal has long since passed.
He next objects to the representation he was provided at the time of his contested probation violation hearing. He says his attorney did not read the mail he sent her (a derogation he describes as “bloody naughty”) and forced him to plead guilty. He says the symptoms that supported his drunk in public charges were caused by failure to take his anti-seizure medication, and that his attorney’s many failures make him the only real victim in this case.
We have no basis for evaluating any of these claims. There is nothing in the record before us to support them other than appellant’s letters. We can hardly just take his word for it that there was a complete and utter systemic failure here without some kind of evidence other than his say-so. If we could reverse merely because the defendant claims innocence, we could turn all the jails and prisons in the country into skateboard parks.
If there is a basis for appellant’s complaints, it has to be provided by writ of habeas corpus. A direct appeal must be decided on the record, and the record here includes no evidence to support appellant’s contentions. The California Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citation.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.] . . . “To promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.”’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Appellant raises several contentions that seem to apply to a driving under the influence (DUI) conviction presently on appeal in the superior court. In regard to these, neither the case nor those facts are before us. He complains that the trial court revoked his probation in part because he had failed to enroll in a DUI class that had been ordered because his DUI was on appeal and he felt that suspended his probation obligations. He complains that he was ordered to enroll in a residential treatment program for alcoholism, but did not do it because they required work of all residents and he was afraid he would lose his SSDI benefits if he took a “job.”
These may or may not be cognizable issues in his misdemeanor appeal, but they are not before us in this case and we do not have authority to do something about them simply because another of his cases is before us.
What we have is a finding by the trial court that appellant violated his probation when he was found to be drunk in public. The court explicitly rejected his “failure to take anti-seizure medication” defense. We find nothing in the record to indicate the court could reasonably have done anything else. The evidence against him was overwhelming, and his lengthy history of alcohol-related offenses (18 in 4 years) pretty much eviscerated his defense that he was undergoing an epileptic seizure rather than passed out drunk. He is frankly lucky the judge gave him a mitigated two-year term for no other reason than to demonstrate “what a weird old judge I can be when I want to be.”
Actually, we do not take Judge Fitzgerald at his word on this occasion. The quality of mercy is not strained. In this case it “droppeth” on appellant. Appellant’s counsel, whom he derides for ineffectiveness, somehow convinced one of the toughest judges in the system to be lenient for no easily articulable reason.
In fine, appellate counsel could find no grounds for appeal and neither can we. The judgment is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.