P. v. Beckwith

Filed 2/20/08 P. v. Beckwith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.

William H. Strohmeyer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant, represented by counsel, pled no contest to one count of committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (a));^[1]in return, the remaining allegations, including a prior strike, and a companion case were dismissed, and defendant was promised a stipulated prison term of six years in state prison. Immediately thereafter, defendant was sentenced in accordance with the plea agreement. Defendant appeals from the judgment, challenging the validity of the plea agreement and the representation he received.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On August 19, 2003, defendants probation officer, Brande Lee Philips, received a call advising her that sexual abuse might be occurring at defendants residence. Hence, Phillips, along with other probation officers, went to defendants residence to conduct a probation search. When the officers arrived at defendants home, he was not home, and defendants 18-year-old stepdaughter allowed the officers to conduct a safety sweep of the residence. During the course of the search, the officers came upon a locked bedroom door, which was determined to be defendants room. After gaining entry into the room, the officers found cameras, computer equipment, video equipment, toys, and videotapes.

Based upon conversations with defendants stepdaughter, Phillips took seven or eight of the videotapes for viewing. The videotapes demonstrated evidence of child molestation committed by defendant and child pornography. Phillips thereafter contacted the sheriffs department. After further investigation by the police, in which additional videotapes were seized from defendants room showing further acts of child molestation committed by defendant, defendant was arrested. Defendant admitted that he had been on probation for a little over a year and that during that time period, he had been subjected to at least five other searches. He denied molesting any of the children at the residence.

Following the preliminary hearing, on October 6, 2003, an information was filed charging defendant with four counts of lewd acts upon a child ( 288, subd. (a)) and one count of possession of child pornography ( 311.1). The information also alleged that defendant had suffered one prior strike conviction ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).

On August 20, 2004, defendant filed a motion to dismiss and suppress evidence obtained during the probation search of his residence. On that same date, he also filed a motion to quash the search warrant that was issued following the probationary search and to suppress all the evidence and items that were obtained under that warrant. The People opposed the motions.

The suppression hearing was held on November 12, 2003. After the court heard testimony from the officers and defendant, the court denied the motions. The court found that the probation search was constitutionally permissible and that the subsequent search warrant was accurate.

On November 19, 2004, the court granted defendants oral motion for a continuance to seek a writ of mandate.^[3]

On July 28, 2006, after a number of further continuances and the matter being set for trial, defendant pled no contest to one count of committing a lewd act upon a child in exchange for the dismissal of the remaining charges and prior strike allegation as well as a probation violation case and a stipulated sentence of six years. Defendant was immediately sentenced with credit for time served.

On March 5, 2007, defendant filed a petition for writ of habeas corpus, seeking leave to file a late notice of appeal from the July 28, 2006, judgment. On April 11, 2007, we granted the petition, and defendant thereafter timely filed his notice of appeal.

II

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant claims he received ineffective assistance of counsel when trial counsel failed to explain the terms of the plea agreement and failed to investigate the charges. He also claims that his appellate counsel was ineffective for filing a Wende brief.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, the record shows defendant was adequately advised of the rights being waived and the consequences of pleading guilty. Further, the plea agreement reflects defendant had sufficient time to consult with his attorney concerning the case. Additionally, in open court, defendant admitted that he understood all of his rights, was aware of the consequences of pleading guilty, had had sufficient time to consult his attorney, had had everything on the plea form explained to him by his attorney, and had had sufficient time to consider the meaning of each statement in the plea form. In fact, defendant had no questions or hesitations during the taking of the plea.

In addition, we reject defendants claim that trial counsel was ineffective for failing to investigate the charges against him. There is no evidence in this record to support such a showing. Absent such a showing, we find no statutory or constitutional violation to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 698 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Moreover, defendants waiver of his right to appeal and his failure to obtain a certificate of probable cause forecloses this contention. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Panizzon (1996) 13 Cal.4th 68, 86.)

Furthermore, our independent review of the record reveals that defendants suppression motions were properly denied. (See, e.g., People v. Bravo (1987) 43 Cal.3d 600, 603-604 [peace officers may search a probationer and/or his residence if they have reasonable cause to suspect criminal activity]; United States v. Knights (2001) 534 U.S. 112, 121 [122 S.Ct. 587, 151 L.Ed.2d 497] [finding a warrantless search authorized by a probation condition satisfied the Fourth Amendment because it was supported by reasonable suspicion].)

We also reject defendants claim that his appellate counsel was ineffective for failing to discover nonfrivolous issues. Appellate counsel has the duty to prepare a legal brief containing citations to the appellate record and appropriate authority. Counsel must set forth all arguable issues and cannot argue the case against his or her client. To establish ineffective assistance of counsel, however, the defendant must show that counsels performance fell below an objective standard of reasonableness under prevailing professional norms and prejudice from counsels unprofessional errors. (Strickland v. Washington, supra, 466 U.S. at p. 694.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)

The fact that appellate counsel followed the procedure set forth in People v. Wende, supra, 25 Cal.3d 436 is insufficient, by itself, to show appellate counsel has been ineffective. Defendant has failed to meet his burden of proof on this issue. We have concluded our independent review of the record and find no arguable issues. Since, after our own independent review of the record, we have concluded no reasonably arguable legal or factual argument exists, appellate counsels filing of a Wende brief was not ineffective assistance.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

GAUT

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The factual background is taken from the testimony presented at the motion to suppress hearing as well as the preliminary hearing.

^[3] There is no indication in the record that a writ of mandate was ever taken.