P. v. Hempe
Filed 3/1/13 P. v. Hempe 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN RICARDO HEMPE,
Defendant and Appellant.
E054888
(Super.Ct.No. FWV1002625)
ORDER MODIFYING OPINION
AND DENYING PETITION FOR
REHEARING
[NO CHANGE IN JUDGMENT]
The petition for rehearing is
denied. The opinion filed in this matter
on February 4, 2013, is
hereby modified, as follows:
On page 4, delete the first paragraph,
and replace it with the following:
We
offered defendant an opportunity to file a personal supplemental brief, and
granted numerous extensions at his request, but he did not do so until after
this opinion was initially filed on February
4, 2013. On February 14, 2013, defendant filed a
15-page letter, with exhibits, raising a number of issues, which he divides
into three main categories.
Defendant
first argues his two attorneys provided ineffective assistance of counsel when
they allowed him to plead guilty and failed to:
file an appeal on his behalf; investigate; present evidence or witness
testimony; present certain jury instructions on the defenses of ignorance,
mistake of facts or necessity; and file a Pitchess
motion. Here, defendant did receive the
assistance of appointed appellate counsel, and so any deficiencies by his trial
attorneys in failing to file an appeal did not prejudice him. A cognizable claim of ineffective assistance
of counsel following a guilty plea requires a showing that the defendant would
not have pled guilty and insisted on going to trial but for counsel’s
incompetent advice. (
253.) Such a claim must be corroborated
by independent, objective evidence. (
Pertinent factors to be considered include the advice actually given by
counsel, whether counsel accurately and effectively communicated the terms of
the offer to the defendant, and the difference between the offer and the
probable consequences of proceeding to trial, as viewed at the time the offer
was made. (Ibid.) Defendant does not
make this showing with regard to his claims on the presentation of evidence and
witnesses, as well as jury instructions.
Defendant does not state with any specificity what information his
attorneys would have uncovered had they investigated to his satisfaction. Finally, defendant does not explain, much
less establish, how filing a Pitchess
motion would have resulted in a better outcome for him.
Next,
defendant argues he was denied equal protection and due process because: his
attorneys were not able to sever his case from that of his codefendant “as well
as any other motions which would have led to a different outcome;†and his
attorneys “unjustly conspired with the District Attorney†to deny him
discovery, ignored $2,800 in marked currency found on his person and unjustly
increased the amount of victim restitution.
Regarding the severance motion, we cannot find any mention in this
record that the defense filed or orally made such a motion. To the extent this is a claim of ineffective
assistance of counsel for failing to make a severance motion, defendant fails
to establish both ineffective assistance and prejudice therefrom. Regarding the “any other motions†claim, we
are unable to determine to what he is referring. Regarding the claims his attorneys conspired
with the District Attorney, such claims based on matters outside the record on
direct appeal are more appropriately raised in a habeas corpus proceeding. (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) We must therefore reject these claims.
Defendant’s
third main contention is unintelligible.
He refers in several places to an inmate labor program and joint
ventures. In addition, he attaches as an
exhibit several pages of a document published by the Department of Corrections
and Rehabilitation about a Joint Venture Program that provides employment for
inmates, but we are unable to determine what appealable issue he intends to
raise. Because defendant fails to
present this argument in a cogent manner, we need not consider the issue. (People
v. Bonin (1989) 47 Cal.3d 808, 857, fn. 6.)
Pursuant to the
mandate of People v. Kelly (2006) 40
Cal.4th 106, we have independently reviewed the record for potential error and
find no arguable issues.
Except for this modification, the
opinion remains unchanged. This
modification does not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
RICHLI
J.
MILLER
J.
Filed 2/4/13 P. v. Hempe
CA4/2 (unmodified version)
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JONATHAN RICARDO HEMPE,
Defendant
and Appellant.
E054888
(Super.Ct.No.
FWV1002625)
OPINION
APPEAL
from the Superior Court
of San Bernardino
County. Mary E. Fuller, Judge. Affirmed.
Jeanine
G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Jonathan Ricardo Hempe is serving 33 years in prison after
pleading guilty to robbery, extortion and burglary, and admitting a gun use
enhancement. As discussed below, we
affirm the judgment.
and Procedure
On
October 20, 2010,
defendant and his codefendant were at the codefendant’s home with two
friends/victims talking and drinking.
When the four men went for a drive, defendant and one of the victims,
Paredes, got into an argument over money Paredes owed to defendant. At some point defendant had Paredes place a
call to his father telling him he needed some money to pay off a debt. Defendant took the phone from Paredes and
told the father that he had Paredes in the trunk of his car and that something
bad would happen if he did not pay $1500.
Defendant sent a text to his codefendant saying he was going to “smokeâ€
both of the victims. Defendant was armed
with a 9-millimeter handgun and his codefendant had a .357 revolver. The car pulled over to a desolate area and
defendant told the two victims to “just get out of here.†He also took their wallets and cell
phones. As the victims walked away,
defendant fired at them four times, striking Paredes once in the back. Defendant and his codefendant then drove to
Paredes’ residence and demanded money from the family while brandishing their
handguns. The family handed over $600.
On
October 22, 2010, the People filed a complaint charging defendant with two
counts of attempted first degree murder (Pen. Code, §§ 664/187(a)),
two counts of assault with a firearm (§ 245, subd. (b)), extortion (§ 520),
residential burglary (§ 459), possession of a short-barreled shotgun or rifle
(§ 12020, subd. (a)), two counts of possession of a firearm by a felon (§
12021, subd. (a)(1)), and possession for sale of a controlled substance (§
Health & Saf. Code, § 11378). The
People also alleged that defendant had a prior strike (§§ 1170.12 & 667,
subds. (b)-(i)) and serious felony convictions (§ 667, subd. (a)(1)), and that
he personally used a firearm and caused great bodily injury (§ 12022.53).
On
April 26, 2011, defendant pled guilty to second degree robbery with personal
use of a firearm (without the great bodily injury allegation), one count of
extortion, and one count of residential burglary. Defendant also admitted to having one prior
strike and one serious felony conviction.
On
June 8, 2011, the trial court sentenced defendant to the agreed term of 33
years in prison, as follows: three years
for the robbery, doubled to six years for the prior strike, 20 years for the
firearm enhancement, two years for the robbery, a stayed term of two years and
eight months for the burglary, and five years for the prior serious felony.
At
the victim restitution hearing held on August 18, 2011, the trial court ordered
defendant to pay $40,000 to Paredes for uninsured medical bills and $7,560 to
the other victim. Defendant’s liability
is joint and several with that of his codefendant. Defense counsel agreed to these amounts. This appeal followed.
Upon
defendant’s 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 this
court to conduct an independent review of the record.
We
offered defendant an opportunity to file a personal supplemental brief, and
granted numerous extensions at his request, but he has not done so. Pursuant to the mandate of
we have independently reviewed the record for potential error and find no
arguable issues.
The judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
