P. v. Fannan
Filed 4/11/13 P. v. Fannan CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Trinity)
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>
THE PEOPLE, Plaintiff and Respondent, v. JEREMIAH DAVID FANNAN, Defendant and Appellant. | C070904 (Super. Ct. No. 10F0127A) |
Appointed
counsel for defendant Jeremiah David Fannan asked this court to review the
record to determine whether there are any arguable
issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result
in a disposition more favorable to defendant, we shall affirm the judgment.
We
provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly
(2006) 40 Cal.4th 106, 110, 124.)
Defendant
pleaded no contest to assault with force likely to cause great bodily injury,
kidnapping during a carjacking, and
reckless driving. As to the assault
charge he also admitted the enhancement allegation that he inflicted great
bodily injury on the victim. The trial
court sentenced defendant to an aggregate term of seven years eight months,
plus a consecutive term of life in state prison. Because this matter was resolved by plea the
facts are taken from the preliminary hearing transcript, as that served as the
stipulated factual basis of the plea.
Defendant
met Sam Jungwirth at the Whiskeytown Visitor
Center in August 2010. Jungwirth agreed to give Fannan a ride to Lewiston. Defendant directed Jungwirth to a remote
location and then hit Jungwirth multiple times on his head and face. Defendant ordered Jungwirth to move to the
passenger’s seat and Fannan moved to the driver’s seat, locked the doors and
began driving back toward Redding. He demanded Jungwirth’s wallet and took him
to an ATM to withdraw cash. Defendant
also told Jungwirth not to report his truck as stolen for at least a week. Defendant threatened Jungwirth and his
family’s safety if he did not comply with defendant’s demands. When they got to the bank, Jungwirth yelled
for someone to call 911.
Law
enforcement issued an alert for the stolen truck. A few hours later, officers saw defendant
driving Jungwirth’s truck recklessly on the highway. Officers attempted to pull the truck over and
defendant fled in the truck, reaching speeds of approximately 80 miles per hour
and skidding into the opposing lane.
Later officers found the stolen truck, unoccupied and a K-9 officer
found defendant in the woods near the truck.
As a
result of being hit by defendant, Jungwirth had a black eye, multiple
contusions, and required stitches to his forehead and ear.
Defendant
made five Marsden
motions which the trial court denied.
The trial court granted defendant’s sixth Marsden motion based on an irreconcilable conflict between
defendant and counsel, and appointed substitute counsel. The trial court later relieved substitute
counsel due to health issues and appointed new counsel.
Defendant
filed a motion to dismiss based on a
violation of his right to a speedy trial.
The trial court denied the motion.
Defendant also filed a motion to dismiss in the interests of
justice. (Pen. Code, § 1385.)
Defendant
pleaded no contest to assault with force likely to cause great bodily injury
(Pen. Code, § 245, subd. (a)(1)), kidnapping during a carjacking (
reckless driving (Veh. Code, § 2800.2, subd. (a)). As to the assault charge he also admitted the
enhancement allegation that he inflicted great bodily injury on the victim. (Pen. Code, § 12022.7, subd. (a).) In exchange for the plea, numerous charges
were dismissed. In accordance with the
plea agreement, the court sentenced defendant to an aggregate term of seven
years eight months, plus a consecutive term of life in state prison. The trial court ordered defendant to pay a $3,000
restitution fund fine (id.,
§ 1202.4, subd. (b)), a $3,000 suspended restitution fine unless parole is
revoked (id., § 1202.45), and
awarded defendant 693 days of presentence custody credit (id., § 2933.1).
Defendant
appeals. He did not obtain a
DISCUSSION
We
appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief setting forth the facts of the case and, pursuant to
record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right
to file a supplemental brief within 30 days of the date of filing of the
opening brief.
Defendant
has filed a supplemental brief contending he was denied his right to a speedy
trial; received ineffective assistance of trial counsel Erin McNally as a
result of her failure to file a peremptory challenge under Code of Civil
Procedure section 170.6, a change of venue motion, a motion to recuse the
district attorney’s office, and a claimed conflict of interest based on her
prior representation of him in another case; and, received ineffective
assistance of trial counsel John Webster in that Webster advised defendant his
speedy trial rights would be preserved for appeal. Defendant also complains the trial court
erred in relieving Frank O’Connor as counsel and denying defendant’s motion to
dismiss. Lastly, he contends he received
ineffective assistance of appellate counsel by virtue of counsel filing a
With the
exception of the claims as to appellate counsel, the claims raised by defendant
in his supplemental brief each arose
prior to his plea and effectively challenge the validity of his plea. Accordingly, they are not reviewable in the
absence of a certificate of probable cause.
(People v. Stubbs (1998)
61 Cal.App.4th 243, 244-245.)
As to the
claim that appellate counsel was ineffective for filing a Wende brief, this claim is without merit. An indigent defendant has the right to
effective assistance of counsel on appeal.
(In re Spears (1984)
157 Cal.App.3d 1203, 1210.)
Appellate counsel has the duty to prepare a brief, containing citations
to the appellate record and appropriate authority, setting forth all arguable
issues—that is, those issues which have a reasonable argument supporting
prejudicial error justifying reversal or modification of the judgment. (Ibid.;
People v. Feggans (1967)
67 Cal.2d 444, 447.) Failure of
“appellate counsel to raise crucial assignments of error, which arguably might
have resulted in a reversal†deprives an appellant of effective assistance of
appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202-203.) However, the fact that appellate counsel
followed the procedure set forth in Wende
is insufficient, by itself, to show appellate counsel has been
ineffective. Accordingly, defendant has
failed to meet his burden of proof on the issue of ineffective assistance of
appellate counsel. This is particularly
so where, as here, we have undertaken an examination of the entire record
pursuant to Wende, and we find no
arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The
judgment is affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
DUARTE , J.
name="_ftn1" title="">[1] People
v. Marsden (1970) 2 Cal.3d 118.
name="_ftn2" title="">[2] Undesignated statutory references are to the
Penal Code in effect at the time of defendant’s crimes.
