P. v. Cornejo
Filed 12/12/12 P. v. Cornejo CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIK CORNEJO,
Defendant and Appellant.
B243422
(Los Angeles
County Super.
Ct.
No. KA097235)
APPEAL from
a judgment of the Superior Court
of
County, Mike Camacho, Judge.
Affirmed.
California
Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon,
Staff Attorney, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
_________________________________
Facing a
maximum of 16 years in state prison following a preliminary hearing in which
victim Fernando Romero testified that he was robbed of his cell phone and
wallet at gunpoint by defendant and appellant Erik Cornejo and codefendant
Alfredo Cruz,
title="">[1] defendant accepted the prosecution’s offer of
a case disposition of six years in state prison. Defendant obtained a
This court
appointed counsel to represent defendant on appeal. Appointed counsel filed a brief raising no
appellate issues but asked this court to conduct an independent review of the
record pursuant to People v. Wende
(1979) 25 Cal.3d 436. Defendant was
notified of his right to file a supplemental letter brief.
Defendant
has filed a letter brief raising the following issues: (1)
the trial judge forced defendant to admit that a principal was armed
with a handgun, even though defendant “did not know because [he] wasn’t thereâ€;
(2) he “did not want to take the dealâ€
but was advised to plead by his court appointed attorney who did not believe
him and said she was going to do “a half ass job on this case,†depriving him
of the effective assistance of counsel; (3)
he is innocent and the victim of mistaken identity; and (4) he was subject to double punishment because
codefendant had a prior conviction under the three strikes law.
The record
reflects that defendant was offered a sentence of 12 years in state prison at
his arraignment on the information.
Defendant rejected the offer and the case was set for a readiness
conference. At the readiness conference,
it was disclosed that the prosecution received permission to offer defendant a
six-year prison sentence to settle the case.
Defendant wanted to accept the disposition, but the offer also required
a plea by codefendant, who was unwilling to accept a 16-year offer.
After a
break in proceedings, codefendant had a change of heart and agreed to accept
the prosecutor’s offer. The trial court
explained to defendant he would receive the high term of five years on the
charged robbery and a one year enhancement because a principal was armed with a
firearm. Defendant told the court he
understood the settlement terms. After
being fully advised of his constitutional
rights and the consequences of his plea and admission, defendant plead no
contest to the charge of robbery and admitted the principal armed allegation,
with the court explaining that if defendant did not make the admission, “you’re
going to trial as of Monday.†Defendant
admitted the armed allegation, his plea and admission were received, and he was
sentenced to six years in state prison.
Defendant’s
contention that the trial judge forced defendant to admit that a principal was
armed with a handgun, even though defendant “did not know because [he] wasn’t
there,†is not supported by the record.
The reporter’s transcript of the plea contains no statement by defendant
that he was not present at the robbery.
To the contrary, defendant had, at an early stage of proceedings,
expressed his interest in accepting the prosecutor’s offer of six years in
state prison.
Defendant’s
argument that he was denied the effective assistance of counsel is also not
shown in the appellate record. The
record does demonstrate that counsel obtained a 50 percent reduction in the
offer to settle the case, from 12 to
6 years, and defendant willingly accepted the proposition. Any complaint defendant may have regarding
counsel must be raised by another remedy, such as petition for writ of habeas
corpus. “‘If the record
on appeal sheds no light on why counsel acted or failed
to act in the manner challenged, an appellate claim of
explanation and failed to provide one, or there simply could be no satisfactory
explanation. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266.) Otherwise,
the claim is more appropriately raised
in a petition for writ of habeas
v. Carter (2003) 30 Cal.4th 1166, 1211.)â€
(People v. Gray (2005) 37
Cal.4th 168, 207.)
Defendant’s
final two contentions—that he is the victim of mistaken identity and he was
subject to double punishment because codefendant had a prior conviction under
the three strikes law—are simply not borne out by the record on appeal. The only indications of guilt or innocence in
the record point only to defendant’s guilt.
The preliminary hearing transcript contains
was an active gang member who assisted in the robbery at gunpoint of the
victim. Proceedings after arraignment on
the information show defendant’s professed desire to settle the case by
plea. Nor was defendant punished because
codefendant had a strike prior conviction.
That prior conviction was never mentioned in regard to defendant, and
codefendant’s sentence, ten years longer than that of defendant, is explained
by codefendant’s prior conviction.
Defendant has not carried his burden of demonstrating prejudicial
error. (Cal.
Const., art. VI, §13.)
We have
completed our independent examination of all aspects of this case. No arguable appellate issues exist. The judgment is affirmed. (Smith
v. Robbins (2000) 528 U.S. 259.)
KRIEGLER, J.
We
concur:
ARMSTRONG, Acting P. J.
MOSK, J.
name="_ftn1" title="">[1] Cruz
is not a party to this appeal.
