Filed 12/22/17 P. v. Salazar CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
ALVARO SALAZAR,
Defendant and Appellant.
|
(Super. Ct. No. BF166099A)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Alvaro Salazar 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.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we find no arguable issues.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 28, 2016, defendant deterred or prevented a peace officer from performing his or her duty by threats or violence.
On January 5, 2017, defendant pled no contest to felony resisting a peace officer (Pen. Code, § 69) and admitted two prior strike felonies (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in exchange for a six-year term and dismissal of other counts and allegations. Defendant also admitted he violated the terms of his postrelease community supervision (PRCS) in another case by committing the current offense. The trial court sentenced defendant to three years in prison, doubled pursuant to the “Three Strikes” law. The court ordered restitution and various fines and fees.
On the violation of PRCS, the trial court imposed a concurrent 90-day sentence with reinstated PRCS after his release, and lifted the suspension on the PRCS revocation fine previously imposed.
On March 6, 2017, defendant filed a notice of appeal and was granted a certificate of probable cause.
After a review of the entire record, we see no arguable errors on appeal.
We note that defendant may raise issues regarding defense counsel’s representation by way of writ of habeas corpus. Claims of ineffective assistance of counsel are more appropriately litigated in a habeas corpus proceeding. The record before us sheds no light on the claims defendant raised in his request for certificate of probable cause. Where, as here, the record does not show why counsel acted or failed to act in the ways defendant claims, we must reject an ineffective counsel claim based only on the record on appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) A verified petition for writ of habeas corpus allows a defendant to allege facts outside the appellate record to show that counsel’s failure was not justified by a tactical choice or other legitimate reason, and thus might constitute ineffectiveness. (See People v. Michaels (2002) 28 Cal.4th 486, 526; People v. Anderson (2001) 25 Cal.4th 543, 569.)
DISPOSITION
The judgment is affirmed.
* Before Gomes, Acting P.J., Franson, J., and Black, J.†
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
