IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
AKIL LATEEF HAMEED, DEFENDANT AND APPELLANT.
Super. Ct. No. 08F08994
The opinion of the court was delivered by: Raye , P. J.
P.v . Hameed
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 2008 defendant Akil Lateef Hameed pled no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Imposition of sentence was suspended and he was placed on five years' probation.
In December 2009 Detective John Lewis was on duty in Folsom and saw a person driving a Lexus commit a driving violation. As Lewis was preparing to conduct a traffic stop, the car pulled into a parking space. Lewis immediately recognized defendant, who was in the passenger seat. They had had many previous contacts, and Lewis's duties included monitoring probationers within the City of Folsom. Accordingly, he was aware defendant was on formal searchable probation. He conducted a probation search, found defendant in possession of counterfeit money, and arrested him. Defendant was charged with possession of counterfeit money in case No. 10F00020. As a result of those charges, a petition for violation of probation was filed in case No. 08F08994.
Following the denial of a motion to suppress, pursuant to a plea agreement, defendant admitted the probation violation. Probation in case No. 08F08994 was revoked, and defendant was sentenced to three years in state prison and waived any time credits on that case. The charges in case No. 10F00020 were dismissed.
Defendant did not obtain a certificate of probable cause. (Pen. Code, 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) 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 filed a supplemental brief raising a number of claims. In his brief, he claims a preplea Marsden motion was improperly denied,*fn1 his plea was not voluntary, the prior strike enhancement did not qualify as a strike, his Penal Code section 476 charge did not qualify as a felony, ineffective assistance of counsel, and various portions of the trial court record, such as the "prelim[inary] transcripts," are missing from the record. Defendant also contends that appellate counsel was ineffective in filing a Wende brief and conspiring with trial counsel to conceal his incompetent representation of defendant.
Defendant's claims relate either to the validity of his plea or to matters that find no support in the record on appeal. We cannot address matters of either type.
Challenges to the validity of the plea cannot be raised without a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.) The other claims raised by defendant, including allegations regarding trial counsel's conduct and statements made in the "preliminary transcripts," find no factual support in the record on appeal. In fact, given the nature of the allegations, it appears they are necessarily based upon conduct outside the record on appeal. We cannot consider matters outside the record on appeal. (People v. Szeto (1981) 29 Cal.3d 20, 35.) Similarly, defendant's claims regarding appellate counsel's conspiring with trial counsel find no support in the record and would seem to be necessarily based upon matters outside the record.
Defendant claims that appellate counsel was ineffective because she filed a Wende brief. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel's deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.) 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. 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.
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. Accordingly, defendant has also failed to meet his burden of proof on the issue of ineffective assistance of appellate counsel. Appellate counsel's filing of a Wende brief was not unprofessional.
The judgment is affirmed.
ROBIE, J. BUTZ , J.