P. v. Burchard
Filed 5/8/13 P. v. Burchard CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANN MARIE BURCHARD,
Defendant and Appellant.
D062530
(Super. Ct.
Nos. SCD232737 & SCD241185)
APPEAL from
a judgment of the Superior Court
of
County, Dwayne K. Moring, Judge. Affirmed.
Esther K.
Hong, under appointment by the Court of Appeal, for Appellant.
Following
denial of her motion to suppress evidence
(Pen. Code, § 1538.5)
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in case No. SCD232737, in April 2012, Ann Marie Burchard entered a negotiated
guilty plea to using personal identifying information of another (§ 530.5,
subd. (a)) and burglary (§ 459). In
June, in case No. SCD241185, Burchard entered a negotiated guilty plea to using
personal identifying information of another (§ 530.5, subd. (a)) while
released from custody on bail (§ 12022.1, subd. (b)). In July, the court imposed a stipulated
four-year sentence: in case No.
SCD241185, the two-year middle term on the substantive offense and two years
for the enhancement, and in case No. SCD232737, a concurrent two-year middle
term for each offense. The court ordered
the entire sentence to be served in the custody of the sheriff. Burchard appeals. We affirm.
BACKGROUND
In case No.
SCD232737, Burchard willfully and unlawfully used personal identifying
information of another to commit theft and entered a building with the intent
to commit theft. In case No. SCD241185,
while released from custody on bail, Burchard willfully and unlawfully obtained
personal identifying information of another person and used that information
for an unlawful purpose.
DISCUSSION
I
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
v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel mentions as possible, but not arguable,
issues: (1) whether the court committed
reversible error by denying the suppression motion; (2) whether Burchard's
three attorneys provided effective assistance of counsel; (3) whether Burchard's
pleaded guilty and agreed to a prison sentence, but was then sentenced to
county jail due to a change in the law; and (4) whether ex post facto
principles require that Burchard serve her sentence in prison.
II
A
We granted Burchard permission to
file a brief on her own behalf. She has
responded with the following contentions.
Burchard's first retained counsel
did not contact witnesses for the suppression motion, obtain transcripts of
previous proceedings or prepare a sufficient defense. After counsel stated, in the prosecutor's
presence, that the chances were "slim to none" the suppression motion
would be granted, the prosecutor increased the offer from six months to two
years. Counsel asked to be relieved, and
the court granted the motion, leaving Burchard without counsel.
The court held a
paperwork and transcripts of prior proceedings) of the second retained attorney
and relieved that attorney, again leaving Burchard without counsel.
Immediately before the parties were
to sign the plea bargain, the second retained attorney and an associate of Burchard's
new appointed counsel had an altercation and the second retained attorney urged
Burchard not to sign the plea bargain.
The court continued the matter for two weeks, stating "he could not
morally oversee and oblige to the fact that [Burchard] was signing the plea
without being under duress." Two
weeks later, the prosecutor offered the original deal of a split sentence, and
Burchard accepted.
The delays, the assignment of
numerous judges and ineffectiveness of the attorneys affected the case and sentencing. The court did not consider alternative
sentencing and altered the plea agreement at the last minute. The sentence to county jail denied Burchard
credits and access to programs available in prison that would have reduced the
time she was required to serve.
B
Burchard waived her right to appeal
the denial of her suppression motion in both cases and, in case No.
SCD241185, also waived her right to appeal the stipulated sentence. Furthermore, because Burchard did not obtain a certificate of probable
cause, she cannot challenge the validity of her guilty pleas or the stipulated
sentence. (§ 1237.5;
1095; People v. Panizzon (1996) 13
Cal.4th 68, 79.) In any case, the record
does not show any impropriety in the plea bargaining process, and on appeal we
cannot review matters outside the scope of the record. (People
v. Roberts (1963) 213 Cal.App.2d 387, 394.)
The record
does not demonstrate that Burchard
received ineffective assistance of counsel, that is, that counsel failed to act
in a manner to be expected of a reasonably competent attorney and that
counsel's acts or omissions prejudiced Burchard. (
668.) Burchard's first retained attorney
was relieved at Burchard's request.
Burchard asked that a public defender be substituted for her second
retained attorney. Burchard never lacked
legal representation.
III
A review of the record pursuant to
arguable appellate issues. Burchard has
been competently represented by counsel on this appeal.
DISPOSITION
The
judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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All further statutory references
are to the Penal Code.
