P. v. Judge
Filed 1/10/13 P. v. Judge
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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
LARRY
LOUIS JUDGE,
Defendant and Appellant.
E056113
(Super.Ct.No. FSB1103639)
OPINION
APPEAL
from the Superior Court of San
Bernardino County. R.
Glenn Yabuno, Judge. Affirmed.
John
L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On
September 14, 2011, an information alleged that defendant and appellant Larry
Louis Judge (1) possessed a controlled substance in violation of Health and
Safety Code section 11350, subdivision (a) (count 1); and (2) transported a
controlled substance in violation of Health and Safety Code section 11352,
subdivision (a) (count 2). The
information also alleged that defendant had been convicted of a violent or
serious felony within the meaning of Penal Code section 667, subdivisions (b)
through (i), and had served two prior prison terms within the meaning of Penal Code
section 667.5, subdivision (b).
On
September 8, 2011, defendant waived his
himself. On September
21, 2011,
defendant affirmed his prior waiver of his right to counsel. On December 2, 2011, the trial court denied
defendant’s motion for a change of venue.
It also denied defendant’s motion for recusal of the trial judge under
Code of Civil Procedure section 170.6.
On
March 15, 2012, defendant pled no contest to
count 2, in exchange for a sentence of three years in prison and a dismissal of
count 1 and the remaining allegations.
The sentence was to be served concurrent with his sentence in another
case, case No. FSB1102390. The
the factual basis for the no contest plea.
The
sentencing hearing occurred the same day.
Defendant was sentenced to three years in state prison. He was awarded 203 days of actual credits and
203 days of conduct credits for a total award of 406 days. Defendant was ordered to pay a restitution
fine of $240 and a court security fee of $70.
On
April 18, 2012, defendant filed a “first amend
notice of appeal.†On May
4, 2012,
he filed an amended notice of appeal
and requested a certificate of probable cause.
The trial court granted the request for a
STATEMENT OF FACTS
On
July 4, 2011, Officer Jeffrey Dillon of the
San Bernardino Police Department was on patrol.
He observed a red BMW driven by defendant run a stop sign at the
intersection of 6th Street and G Street.
After the officer stopped defendant, he found cocaine base in
defendant’s left sock. He also found a
methamphetamine pipe in a coffee cup which was inside the vehicle. The cocaine base weighed 0.36 grams with the
packaging; Officer Dillon believed that was a usable amount of cocaine.
ANALYSIS
After defendant
appealed, and upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of
and Anders v. California (1967) 386
U.S. 738 setting forth a statement of the case, a summary of the facts, and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We
offered defendant an opportunity to file a personal supplemental, and he has
done so. Pursuant
to the mandate of People v. Kelly
(2006) 40 Cal.4th 106, we have independently reviewed the record for potential
error.
On October 15, 2012, defendant filed his first supplemental brief. In his eight-page handwritten brief,
defendant essentially argues that his appellate counsel is ineffective for
filing a brief under People v. Wende,
supra, 25 Cal.3d 436. Appellate counsel has the duty to prepare a
legal brief containing citations to the appellate record and appropriate
authority. Counsel must set forth all
arguable issues and cannot argue the case against his or her client. To establish ineffective assistance of
counsel, however, the defendant must show that counsel’s performance fell below
an objective standard of reasonableness under prevailing professional norms and
prejudice from counsel’s unprofessional errors.
(Strickland v. Washington
(1984) 466 U.S. 668, 694.) The defendant
bears the burden of proving ineffective assistance of counsel by a
preponderance of the evidence. (
709, 714.)
The fact that
appellate counsel followed the procedure set forth in People v. Wende, supra,
25 Cal.3d 436 is insufficient, by itself, to show appellate counsel has been
ineffective. Defendant has failed to
meet his burden of proof on this issue.
Moreover, although
it is unclear, defendant seems to be arguing that the evidence was insufficient
to support a conviction for possessing a controlled substance. In this case, however, defendant pled no
contest to count 2. He admitted that he transported
a controlled substance. He cannot now
claim that the substance was not a controlled substance.
In addition to his
supplemental brief, defendant filed a second supplemental brief and “motion
access to court compel†on October 30, 2012. In this brief, he renewed his motion for
access to the law library. We agree with
the order we issued on September 21, 2012, and again
state that defendant has failed to establish that he has been denied prison
library access that would impede his access to the courts. (In re
Harrell (1970) 2 Cal.3d 675, 694, explained by People v. Loyd (2002) 27 Cal.4th 997.)
Defendant also
seems to be arguing that the prosecution and the trial court committed
misconduct because the information alleged a violation of Penal Code section
667.5, subdivision (b), when “I did not suffer a felony conviction within five
(5) years.†Defendant’s argument,
however, is moot as that allegation was dismissed.
Furthermore,
defendant appears to be arguing that the three strikes law is unconstitutional. The three strikes law, however, was not
applied to defendant as the allegations under that law were dismissed.
We have concluded
our independent review of the record
and find no arguable issues. Since,
after our own independent review of the record, we have concluded no reasonably
arguable legal or factual argument exists, appellate counsel’s filing of a
brief under People v. Wende was not
ineffective assistance.
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
title=""> [1] The statement of facts is taken from the
preliminary hearing transcript which served as the factual basis for the
plea.
