P. v. Venerable

Filed 5/21/08 P. v. Venerable CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, James Pierce, Judge. Dismissed.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Brendon Venerable (Venerable) appeals from the judgment entered following his plea of no contest to the sale or transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)) and his admission that he previously had been convicted of a serious felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Venerable to six years in state prison. We dismiss Venerables appeal as inoperative for failure to obtain a certificate of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[1]

Long Beach Police Detective Chris Thue (Thue) is an expert in the recognition of narcotics and narcotics for the purpose[] of sales. At approximately 6:30 p.m. on March 22, 2007, Thue went to the intersection of 20th and Pacific in the City of Long Beach. There, he contacted a confidential informant who agreed to conduct a narcotics transaction.

After searching the informant for narcotics and money, Thue gave to the informant a prerecorded $20 bill and instructed him to walk south on Pine Street to Pacific Coast Highway on the west side of the street. At about mid-block on Pine, the informant contacted Venerable. Venerable and the informant walked north on Pine, to the corner of 20th and Pacific. At that point, the informant split from Venerable and walked toward another man, Cheron Phipps (Phipps).

Thues partner, Long Beach Police Officer Whelan, had waited in the car. From that vantage point, Whelan observed a hand-to-hand transaction between the confidential informant and Phipps.

After the transaction, the confidential informant continued to walk north on Pacific until Thue picked him up. The informant then gave to Thue an off-white rock which Thue believed to be cocaine. The informant told Thue that he had asked Venerable where he could get a dub. Venerable took out his cell phone, made a call and told the person on the other end,  Hey, I need a dub.  After the informant heard a voice on the cell phone say, Okay, Venerable offered to take the informant to the person with the narcotics. The two men walked up Pine to 20th and Pacific. After arriving at the intersection, Venerable pointed to Phipps. The confidential informant left Venerable and walked over to Phipps. Without speaking, Phipps handed to the informant an off-white, rock-like substance wrapped in cellophane and the informant handed to Phipps the prerecorded $20 bill.

Phipps and Venerable were subsequently detained and the confidential informant identified them as the men who had sold him cocaine. A search of Phipps revealed the prerecorded $20 bill, approximately $242 in cash and 12 grams of a green leafy substance Thue believed to be marijuana.

It was stipulated that G. Gossage, a chemist for the Long Beach Police Department, determined the substance sold to the confidential informant consisted of .21 grams of cocaine base and that Phipps had been in possession of 12.90 grams of marijuana.

2. Procedural history.

On April 24, 2007, Venerable was charged by information with one count of the sale or transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)). It was further alleged Venerable had suffered a prior conviction for first degree burglary (Pen. Code, 459), a serious felony within the meaning of the Three Strikes law (Pen. Code,  667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served prison terms for four prior felony convictions (Pen. Code, 667.5, subd. (b)).

At proceedings held on May 31, 2007, Venerable entered into a plea agreement under the terms of which he was to be sentenced to a total of six years in prison, consisting of the low term of three years doubled pursuant to the Three Strikes law. After waiving his right to a trial, to confront and cross-examine the witnesses against him, to present a defense and his privilege against self-incrimination, Venerable pleaded no contest to the sale or transportation of cocaine and admitted having previously been convicted of a serious or violent felony within the meaning of the Three Strikes law.

Venerable was sentenced on July 10, 2007. The trial court imposed the low term of three years in prison for Venerables conviction of the sale or transportation of cocaine base, then doubled the term to six years pursuant to the Three Strikes law. The trial court ordered Venerable to pay a $200 restitution fine (Pen. Code, 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (Pen. Code, 1202.45), a $50 lab fee (Health & Saf. Code, 11372.5, subd. (a)) and a $20 court security fee (Pen. Code,  1465.8, subd. (a)(1)). Venerable was awarded presentence custody credit for 111 days actually served and 54 days of good time/work time, for a total of 165 days.

Venerable filed a notice of appeal and request for a certificate of probable cause on September 11, 2007. The request for a certificate of probable cause was denied on September 18, 2007.

This court appointed counsel to represent Venerable on appeal on December 11, 2007.

CONTENTIONS

After examination of the record, appointed appellate counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated March 13, 2008, the clerk of this court advised Venerable to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On April 4, 2008, Venerable filed a response in which he asserted his trial counsel had been ineffective for failing to investigate and challenge the sufficiency of the evidence relied on to charge him with the sale or transportation of cocaine, the evidence was insufficient to support a charge of the sale or transportation of cocaine, he was denied a strike hearing within the meaning of People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and his appellate counsel had been ineffective for failing to investigate and challenge [the] ineffective assistance of trial counsel.

DISCUSSION

1. Venerables contentions fail to demonstrate reversible error.

a. Neither trial nor appellate counsel was ineffective.

Venerable contends his trial counsel was ineffective for failing to investigate and challenge the sufficiency of the evidence relied on to charge him with the sale or transportation of cocaine and that appellate counsel was ineffective for failing to investigate and challenge [the] ineffective assistance of trial counsel.

In assessing claims of ineffective assistance of . . . counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

At a preliminary hearing, the magistrate must decide only whether there is sufficient cause to believe the defendant guilty of a probable offense. That phrase is generally equivalent to reasonable and probable cause[,] which has been defined as such a state of facts as would lead a [person] of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (People v. Batista (1988) 201 Cal.App.3d 1288, 1292; Roman v. Superior Court (2003) 113 Cal.App.4th 27, 32 [At preliminary hearings magistrates simply decide whether a reasonable person could harbor a strong suspicion of the defendants guilt].)

Here, a review of the transcript of the preliminary hearing indicates, although there was more than sufficient evidence indicating Venerable sold or transported cocaine, Venerables trial counsel aggressively cross-examined the Peoples witness, then made a motion to dismiss the information arguing there was insufficient evidence to hold Venerable to answer to the charge. Nothing more was required of counsel. Since trial counsel acted as a diligent advocate, appellate counsel cannot be faulted for failing to argue that trial counsel had been ineffective.

b. Venerable was liable as an accomplice.

Venerable claims he could not have committed the crime of the sale or transportation of cocaine because he did not participate in the narcotics transaction. Venerable, however, was liable as an aider and abettor.

One is an aider and abettor when three factors are present: (a) the direct perpetrator commits a criminal act, (b) the aider and abettor has knowledge of the direct perpetrators unlawful intent and intends to assist in achieving the unlawful ends, and (c) the aider and abettor commits an act which assists in the commission of the crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225; see People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1415.)

Here, the perpetrator, Phipps, sold to the confidential informant $20 worth of cocaine base. It is clear Venerable not only had knowledge of Phippss intent, but intended to aid him in his criminal endeavor. When the confidential informant approached Venerable and asked where he could purchase drugs, Venerable took out his cell phone, called Phipps and told him that he needed a dub. Venerable then facilitated the sale by escorting the confidential informant up the street and directing him to contact Phipps.

c. Venerable was not denied a Romero hearing.

Venerable asserts his trial counsel failed to make a motion to strike his prior conviction pursuant to Romero. However, the transcript of the plea proceedings indicates that the striking of Venerables prior conviction was discussed and rejected. At one point in the proceedings, the prosecutor stated, And, Your Honor, I believe the last time this case was in court, . . . there was a question as to Mr. Venerable, whether or not his time would be at 50 or 80 percent. And in order to get to the 50 percent wed have to strike a strike. And in order to do that I would have to get the okay from my head deputy, who I spoke with regarding this case. And he informed me thatthat, [sic] in fact, we would not be striking the strike and that he thought that [the] offer of six years was too low. If the defendant doesnt take it, I am to make it go up.

2. Venerable failed to obtain a certificate of probable cause.

When a defendant enters a plea of guilty or no contest, he may not bring an appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562.) Although ineffective assistance of counsel may be said to be an issue that goes to the legality of the proceedings (In re Chavez (2003) 30 Cal.4th 643, 649, fn. 2), Venerables claim cannot survive his failure to obtain a certificate of probable cause. (Id. at pp. 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097; Pen. Code, 1237.5.) Further, since Venerable failed to obtain a certificate of probable cause, his contentions regarding his liability as an accomplice and the failure of the prosecutor to agree to the striking of a prior conviction pursuant to Romero are also barred. (In re Chavez, supra, 30 Cal.4th at p. 651.) Even if this court were to construe Venerables supplemental opening brief as a petition for writ of mandate challenging the trial courts denial of his request for a certificate of probable cause (see People v. Castelan (1995) 32 Cal.App.4th 1185, 1187-1188), Venerable has failed to demonstrate any cognizable error.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Venerables counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.) Because Venerable pleaded no contest and failed to obtain a certificate of probable cause, the appeal must be dismissed as inoperative. (In re Chavez, supra, 30 Cal.4th at pp. 649-651; People v. Mendez, supra, 19 Cal.4th at pp. 1094-1099; Pen. Code,  1237.5.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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^[1] The facts have been taken from the transcript of the preliminary hearing.