Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. SCR-460600, SCR-480103, & SCR-482411
SIMONS, J.
Defendant Salvador David Stabile appeals the sentence imposed following his guilty plea in each of three cases pursuant to a plea bargain. Defendant’s counsel advises this court that her examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has advised his client in writing that a Wende brief was filed. Defendant has personally filed a supplemental brief in this case. We agree with counsel that the record reveals no arguable issues and affirm.
Background
Case No. SCR-460600
Defendant was charged with unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 1), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) (count 2) and misdemeanor possession of paraphernalia for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)) (count 3). Defendant’s prior vehicle theft conviction was alleged as to counts 1 and 2 (Pen. Code, § 666.5), and two prior strike convictions and two prior prison terms were alleged as to counts 1 and 2 (Pen. Code, §§ 1170.12, 667.5, subd. (b)).
Case No. SCR-480103
Defendant was charged with receiving stolen bicycles (Pen. Code, § 496, subd. (a)) (count 1), commercial burglary (Pen. Code, § 459) (count 2) and petty theft with a prior (Pen. Code, §§ 666, 484, subd. (a)) (count 3). It was also alleged that each of the crimes was committed while defendant was on bail or on his own recognizance in case No. SCR-460600. Two prior strike convictions and two prior prison terms were also alleged. (Pen. Code, §§ 1170.12, 667.5, subd. (b).)
Case No. SCR-482411
Defendant was charged with unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) (count 1) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) (count 2). Defendant’s prior vehicle theft conviction, and that the offenses were committed while he was on bail or on his own recognizance in case Nos. SCR-460600 and SCR-480103 was alleged as to both counts. Two prior strike convictions and two prior prison terms were also alleged. (Pen. Code, §§ 1170.12, 667.5, subd. (b).)
Plea Bargain
On June 19, 2006, defendant initialed and executed form waivers of his constitutional rights prior to entry of guilty pleas in all three cases. In case No. SCR-460600 he pled guilty to the count 1 unlawful driving or taking of a vehicle, and admitted the prior vehicle theft allegation, one prior strike and two prior prison terms. In case No. SCR-480103 he pled guilty to the count 2 commercial burglary and admitted the on-bail allegation and one prior strike. In case No. SCR-482411 he pled guilty to the count 1 unlawful driving or taking a vehicle, and admitted the prior vehicle theft allegation and one strike prior. In exchange, the balance of the charges and allegations in the three counts were dismissed with Harvey waivers. (People v. Harvey (1979) 25 Cal.3d 754.)
At the June 19, 2006 change of plea hearing, defense counsel Bernabe Hernandez stated there was a factual basis for each plea. The court properly found that defendant understood and freely waived his constitutional rights and permitted him to enter his pleas pursuant to the bargain.
On October 4, 2006, Hernandez stated that defendant wanted to withdraw his plea. The court then held a closed Smith hearing (People v. Smith (1993) 6 Cal.4th 684, 694), at which Hernandez expressed concern that at the time defendant entered his pleas he did not understand he was pleading open and was not being placed in a drug treatment program. The court appointed conflicts counsel Joe Stogner to investigate a possible withdrawal of plea motion.
On October 30, 2006, Stogner informed the court that he and Hernandez determined that a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) would be the most appropriate course for defendant, to be handled by Hernandez.
On February 1, 2007, Marie Case was appointed defense counsel. On February 28, defendant filed a Romero motion to strike his prior strike conviction in each of the three cases and statement in mitigation. The People opposed the motion on the ground it would not be in furtherance of justice. The probation department’s presentence report stated that as a juvenile, defendant was subject to three wardship grants and violated the terms of one of them, but otherwise his performance on juvenile probation was satisfactory. However, as an adult his performance on grants of conditional sentence, probation and parole were unsatisfactory because of his continuing involvement in criminal activity and use of illicit substances. Probation recommended denial of probation in view of defendant’s recidivism.
The court properly exercised its discretion and denied defendant’s Romero motion and denied probation. The court properly sentenced defendant to 13 years four months as follows:
Case No. SCR-460600: six-year term (three-year midterm doubled) on count 1.
Case No. SCR-480103: 16-month term (one-third the four-year midterm doubled) on count 2, plus two consecutive one-year terms for the prior prison enhancements.
Case No. SCR-482411: two-year term (one-third the three-year midterm doubled) on count 1, plus a consecutive two-year term for the on-bail enhancement.
Defendant was awarded 15 days’ credit (11 actual and four conduct days) in case No. SCR-460600. He was awarded seven days’ credit (five actual and two conduct days) in case No. SCR-480103. He was awarded 577 days’ credit (385 actual and 192 conduct days) in case No. SCR-482411.
The court properly imposed a $20 court security fee (Pen. Code, § 1465.8); a $7,800 state restitution fine ($5,800 in case No. SCR-460600, and $1,000 in each of the other two cases) (Pen. Code, § 1202.4); and a $7,800 parole revocation fine suspending pending successful completion of parole (Pen. Code, § 1202.45). Defendant was also ordered to pay victim restitution in an amount determined by the Victim’s Compensation Board (Pen. Code, § 1202.4) and to provide blood and saliva samples (Pen. Code, § 296).
Defendant’s Supplemental Brief
Defendant has personally submitted a supplemental appellate brief and a supporting declaration executed by him asserting that his guilty plea was the result of the ineffective assistance of counsel by both his retained counsel (Hernandez) and court appointed attorneys (Stogner and Case).
A defendant who raises a claim of ineffective assistance of counsel on appeal must establish counsel’s deficient performance based on the four corners of the appellate record. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) “ ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (Ibid.) A claim of ineffective assistance of counsel is more appropriately raised in a petition for a writ of habeas corpus when relevant facts and circumstances pertinent to the claim are not reflected in the record on appeal. (People v. Snow (2003) 30 Cal.4th 43, 111.)
Here, defendant’s supplemental brief states that Hernandez misrepresented the facts of the case to him; Stogner never filed a prepared motion to withdraw defendant’s guilty plea; and Case never received defendant’s case file from Hernandez, was unfamiliar with defendant’s case and was unaware of the contemplated motion to strike a prior conviction (Romero, supra, 13 Cal.4th 475) and withdraw defendant’s plea. He also states that Stogner and Hernandez abandoned him before his motion to withdraw was filed and Case “investigated nothing, filed nothing, . . . possessed no case file, and had absolutely no work product record on file.” In violation of California Rules of Court, rule 8.204(a)(1)(C), these factual statements in defendant’s brief are not supported by any citation to the appellate record. Because none of the facts relied on by defendant in his supplemental brief are supported by citation to the appellate record, we treat his ineffective assistance of counsel claim as waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 9:36, pp. 9-11 to 9-12.)
Because a claim of ineffective assistance of counsel raised on appeal is limited to the four corners of the appellate record, defendant’s supporting declaration may not be considered. However, to the extent that defendant’s declaration is an attempt to reference matters not contained within the appellate record, he is free to seek habeas corpus relief in the superior court upon the issuance of the remittitur. (In re Hillery (1962) 202 Cal.App.2d 293, 294.)
Disposition
There are no arguable issues. The judgment is affirmed.
We concur. JONES, P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.