Opinion
D051343
7-24-2008
THE PEOPLE, Plaintiff and Respondent, v. BARRON D. WILKERSON, Defendant and Appellant. In re Barron D. Wilkerson, on Habeas Corpus. D052739
Not to be Published
On August 30, 2007, Barron Deon Wilkerson pleaded guilty to resisting an officer (Pen. Code, § 69), selling cocaine base (Health & Saf. Code, § 11352, subd. (a)), and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The latter two counts each carried two Health and Safety Code, section 11370.2, subdivision (a) enhancements, one for a prior conviction of Health and Safety Code, section 11351 and the other for a prior conviction of Health and Safety Code, section 11351.5. Wilkerson admitted a strike (Pen. Code, § 667, subds. (b)-(i)) and six prior prison terms (Pen. Code, § 667.5, subd. (b)). The court dismissed the strike, four of the prison priors, and the Health and Safety Code section 11270.2, subdivision (a) enhancements. It sentenced Wilkerson to six years in prison: the four-year middle term for selling cocaine base, concurrent terms on the remaining counts, and one year for each remaining prison prior. Wilkerson appeals and has filed a petition for writ of habeas corpus. We affirm the judgment and deny the petition.
BACKGROUND
On April 5, 2007, Wilkerson sold a piece of rock cocaine to an undercover officer. Wilkerson had approximately five more pieces of rock cocaine in a plastic bag in his mouth. When uniformed officers tried to arrest him, Wilkerson ran into the street, clenched his fists, took a fighting stance, and struggled with the officers.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. 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 lists, as a possible but not arguable issue, whether there was a basis for a plea withdrawal motion based on Wilkersons mental state, coercion by police or defense counsel, or counsels failure to tell Wilkerson about the evidence and possible defenses.
We granted Wilkerson permission to file a brief on his own behalf. He has responded with a supplemental brief and the petition for writ of habeas corpus. He contends that trial counsel and the attorney appointed to evaluate the possibility of a plea withdrawal motion were ineffective. He asserts that they failed to interview witnesses, failed to subpoena surveillance videotapes of the crime scene, failed to inquire into the personnel records of the police officers involved in the case and bring a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531), lied about sending an investigator to interview witnesses and retrieve videotapes, refused to request a tape of the police broadcast of the crimes and to have the drugs tested for Wilkersons DNA; and forced him to plead guilty. Wilkerson also asserts that he was not shown the police report before the plea; when he was taken to the police station, he was so intoxicated that he could not stand, so he could not have resisted the officers; and there was no white drug residue on his mouth.
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 that he received ineffective assistance of counsel. To do so, the defendant must show that 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.)
At the April 19, 2007 change of plea hearing, Wilkerson testified that he had had consumed no alcohol, medications, or other drugs in the past 24 hours; he had read, signed, and initialed the change of plea form; defense counsel had answered all of his questions about it; he understood that there was no agreement with the People, but that the court would consider dismissing the strike; and he wanted to plead guilty. On April 30, the court received a letter from Wilkerson stating that defense counsel knew he was distraught and had been diagnosed with paranoid schizophrenia; counsel failed to show him the police report; he was lead to believe that he had no chance of acquittal; counsels lack of action persuaded Wilkerson to commit perjury; and Wilkerson wished to withdraw his plea. On May 1, the court appointed an attorney to investigate a possible motion to withdraw the plea. On June 11, the day of sentencing, that attorney informed the court that he would not be filing a motion. The court denied Wilkersons request for a certificate of probable cause.
Neither the appellate record nor the petition supports Wilkersons claims that his trial attorneys coerced him into pleading guilty, lied, or were otherwise incompetent. Indeed, the record shows that Wilkerson was competently represented and pleaded guilty voluntarily, knowingly, and intelligently.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issue listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Wilkerson has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed. The petition is denied.
We Concur:
McCONNELL, P. J.
HALLER, J.