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People v. Welsh

California Court of Appeals, Fourth District, First Division
Jul 21, 2008
No. D051783 (Cal. Ct. App. Jul. 21, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD DAVID WELSH, JR., Defendant and Appellant. D051783 California Court of Appeal, Fourth District, First Division July 21, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, No. SCD206746. Stephanie Sontag, Judge.

AARON, J.

Richard David Welsh, Jr., entered a negotiated guilty plea to residential burglary (Pen. Code, §§ 459/460) and admitted that another person—not an accomplice—was present during the burglary within the meaning of section 667.5, subdivision (c)(21). Welsh also admitted that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Under the plea bargain, the prosecution agreed to dismiss charges of petty theft with a prior count (§§ 484/666) and being under the influence of methamphetamine count (Health & Saf. Code, § 11550, subd. (a)). The parties stipulated to a three-year prison sentence.

Statutory references are to the Penal Code unless otherwise specified.

The following month, at Welsh's request, the trial court appointed new counsel to review the case for a possible motion to withdraw the guilty plea.

The trial court denied Welsh's Marsden (People v. Marsden (1970) 2 Cal.3d 118) motion and sentenced Welsh to three years in prison in accordance with the plea bargain.

Welsh did not obtain a certificate of probable cause.

FACTS

At about 1:00 a.m. on May 23, 2007, Jerry Thompson saw a light on in his attached garage. Thompson entered the garage and saw Welsh rummaging through some of his clothes. Thompson locked the garage door to prevent Welsh from escaping and telephoned 911. Police responded and arrested Welsh. Police also retrieved a blue plastic bag outside; it contained Welsh's clothes and various items taken from Thompson's trailer. The door to Thompson's trailer was ajar as were the cabinets inside the trailer.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court 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 trial counsel was ineffective for failing to file a motion to withdraw Welsh's guilty plea based upon mental competence to plead guilty or any other viable legal reason; (2) whether the trial court erred by denying Welsh's Marsden motion; and (3) whether the trial court erred by proceeding with sentencing when Welsh made statements indicating his confusion and illness.

We granted Welsh permission to file a brief on his own behalf. He has filed a supplemental brief.

Welsh contends that he received ineffective assistance of counsel below because his trial counsel "did not go over my report" with him. Welsh does not specify which report he is referencing.

If Welsh is referring to reports that preceded his guilty plea, his claim of ineffective assistance of counsel is not cognizable on appeal. "The right to appeal following a guilty or no contest plea is controlled by section 1237.5." (People v. McEwan (2007) 147 Cal.App.4th 173, 177.) Under section 1237.5, a defendant may not appeal from a judgment of conviction entered upon a plea of guilty, unless:

"(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings [and] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."

A defendant seeking appellate review following a guilty plea must fully and timely comply with the requirements of section 1237.5 or the appeal is inoperative and must be dismissed. (People v. Mendez (1999) 19 Cal.4th 1084, 1099.) Our Supreme Court has held that "a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. Therefore, it [is] incumbent upon defendant to seek and obtain a probable cause certificate in order to attack the sentence on appeal." (People v. Panizzon (1996) 13 Cal.4th 68, 79.) To raise a claim of ineffective assistance of counsel on appeal after a guilty plea, a defendant must obtain a certificate of probable cause when the claim is essentially a challenge to the propriety of the guilty plea. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) If Welsh is referring to the probation report, his ineffective assistance of counsel claim lacks merit. To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

Welsh cannot establish prejudice by his trial counsel. Under the plea bargain, Welsh pleaded guilty and received a stipulated sentence of three years in prison. The probation department prepared a stipulated sentence report—a condensed probation report, which provided the factual background of the instant office and Welsh's criminal history. In this case, the parties had stipulated that Welsh was to receive a three-year prison term; therefore, the probation or stipulated sentence report had no impact on Welsh's sentence. Any failure by counsel to review the report with Welsh was not prejudicial.

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 issues referred to by appellate counsel and those raised by Welsh, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Welsh on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.


Summaries of

People v. Welsh

California Court of Appeals, Fourth District, First Division
Jul 21, 2008
No. D051783 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Welsh

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD DAVID WELSH, JR.…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 21, 2008

Citations

No. D051783 (Cal. Ct. App. Jul. 21, 2008)