Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD196182, David Danielsen, Judge. Affirmed and remanded with directions.
O'ROURKE, J.
Joseph Rinaldi entered a negotiated guilty plea to burglary (Pen. Code, § 459) (count one), two counts of grand theft of a firearm (§ 487, subd. (d)(2)) (counts two and three), and grand theft of personal property (§ 487, subd. (a)) (count five) and admitted a strike (§§ 667 subds. (b)-(i), 1170.12, 668), a serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a prior prison term (§§ 667.5, subd. (b), 668). The court dismissed the strike and the prison prior and sentenced him to prison for six years four months: the 16-month lower term on count two, concurrent sentences on counts three and five, a stayed sentence on count one, and five years for the serious felony prior. Rinaldi appeals. We affirm and order the abstract of judgment be corrected.
All further statutory references are to the Penal Code.
The abstract of judgment erroneously refers to count five as grand theft of a firearm (§ 487, subd. (d)(2)). It is actually grand theft of personal property (§ 487, subd. (a)).
BACKGROUND
In August 2005, Rinaldi lived with Charles Begley's mother in her house on Mount Durbin Drive during her final illness. Rinaldi then lived in a house on Emerald Street with Begley and others. Rinaldi did not come home on the nights of January 10 and 11, 2006. On January 12, Begley went to the Mount Durbin Drive house and noticed certain items were missing. The missing items included four firearms (a long-barreled Winchester .33, a .16-gauge double-barreled shotgun, a .22 rifle with a scope, and a 30-30 Winchester lever-action short-barrel), jewelry (Begley's mother's wedding ring, a pearl necklace, and a turquoise and silver necklace), two bronze statues, a turtle sculpture, an antique teapot, two antique clocks, an abalone shell, tools, a weed whacker, and seven or eight bottles of liquor and wine.
Begley found the statues, one of the clocks, the teapot, the abalone shell, the weed whacker, and the bottles of liquor and wine at Rinaldi's friend's house with Rinaldi. Rinaldi told Begley he had buried the guns in the park. They went to the park and Rinaldi produced the 16-gauge double-barreled shotgun and the short-barreled Winchester. Rinaldi acknowledged that he had entered Begley's mother's house and taken the missing items, but claimed his friend had put him up to it and the friend and a third person had helped him. Begley found two of his mother's watches and other jewelry stuffed in a chair in Rinaldi's room in the Emerald Street house. The police found two earrings in Rinaldi's pants pocket.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He 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, he lists, as possible but not arguable issues: (1) whether the trial court properly denied Rinaldi's section 995 motion; (2) whether it erred by denying his motion to set aside counts two, three and four; (3) whether it erred by denying his motion to suppress his statements; (4) whether it erred by imposing the five-year term for the section 667, subdivision (a) enhancement, rather than dismissing it (§ 1385), when the underlying case was dismissed pursuant to section 1203.4 and the same prior was assertedly dismissed in another case in 2000; (5) whether it erred by failing to award custody credits; and (6) whether its use of his 1978 conviction as the basis for the section 667, subdivision (a) enhancement violated ex post facto principles.
We granted Rinaldi permission to file a brief on his own behalf. He has responded. Rinaldi contends he was denied custody credits to which he was entitled; his parole attorney guaranteed him a concurrent sentence; imposition of the five-year enhancement based on a 30-year-old probation case violated ex post facto principles; denial of his September 15, 2005, continuance motion forced him into a trial without time to prepare; court-ordered discovery was incomplete; he was denied vital witnesses and there was false hearsay testimony by a discredited witness with a criminal record; and he was denied effective assistance of counsel.
Pre-plea Issues
As part of the plea agreement, Rinaldi waived issues relating to the denial of any suppression motion (§ 1538.5) and issues relating to strikes. Furthermore, his request for a certificate of probable cause was denied. Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) On December 28, 2006, this court accordingly ordered that issues on appeal would be "limited to sentencing questions or other matters occurring after the plea, except for issues involving prior strike convictions."
As part of the plea agreement, Rinaldi admitted the 1978 serious felony prior, acknowledged that the only inducement to the plea was the promise that count four (grand theft of a firearm, § 487, subd. (d)(2)) and count six (§ 496, subd. (a), receiving stolen property) would be dismissed, and stated he understood that his plea could result in revocation of parole in other cases, that it could result in consecutive sentences, and that the maximum sentence was 13 years eight months. Rinaldi's contentions that his parole attorney guaranteed him a concurrent sentence and his challenge to the imposition of the five-year enhancement are pre-plea matters that he cannot now challenge. His contentions that the denial of his September 15, 2005, continuance motion forced him into a trial without time to prepare; court-ordered discovery was incomplete; he was denied vital witnesses; and there was false hearsay testimony by a discredited witness with a criminal record are also pre-plea issues. We therefore address only his contentions regarding custody credits and ineffective assistance of counsel.
Rinaldi was initially advised that the maximum sentence was 16 years.
Custody Credits
Because Rinaldi's pre-sentence custody was attributable to his parole violation, and not solely attributable to the instant case, he was not entitled to custody credits. (People v. Bruner (1995) 9 Cal.4th 1178, 1191.)
Effective Assistance of 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 counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) When reviewing an appeal we are limited to the record before us. (People v. Roberts (1963) 213 Cal.App.2d 387, 394.) Here, the record does not support Rinaldi's claims that counsel guaranteed him a concurrent sentence, made any misrepresentation or was incompetent. These claims are more appropriately raised in a petition for writ of habeas corpus.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Rinaldi has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court so that it may correct the abstract of judgment to show count five as grand theft of personal property (§ 487, subd. (a)) rather than grand theft of a firearm (§ 487, subd. (d)(2)). The court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., HALLER, J.