IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
January 27, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALFREDO MARTINEZ GARCIA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F3105)
The opinion of the court was delivered by: Murray , J.
P. v. Garcia
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Alfredo Martinez Garcia asked this court to review the entire record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief claiming he received ineffective assistance of counsel in the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Some time between March 2009 and March 3, 2010, defendant penetrated his seven-year-old stepdaughter's vagina on three separate occasions. The child complained to her mother (defendant's wife) that she had a "rash on her privates." Her mother confronted defendant and he admitted the abuse. The child's mother reported the abuse to the police.
Defendant was arrested and later charged with three counts of intercourse or sodomy with a child under 10 years old (Pen. Code, § 288.7, subd. (a)), and two counts of sexual penetration with a foreign object (Pen. Code, § 289, subd. (d)). Defendant waived his right to a preliminary hearing. Defendant agreed to a stipulated sentence of 24 years, and an amended information was filed to include three charges of committing forcible lewd acts on a child. (Pen. Code, § 288, subd. (b).) Defendant then pled no contest to the three counts of committing forcible lewd acts on a child.
Prior to entering his no contest plea, defendant reviewed with counsel a waiver of rights form. He initialed and signed the form in the appropriate places, indicating he knew and understood his constitutional rights, that he was voluntarily waiving those rights and that he knew and understood the consequences of his plea. He told the court he initialed and signed the form only after he read and understood it completely. In response to the court's question about whether defendant had a "full opportunity" to talk with counsel about the form and his case, defendant answered, "Briefly, your Honor. Yes sir." After the court repeated, ". . . Have you had a full opportunity to do so?" defendant spoke to counsel off the record and then told the court, "Yes, sir. Yes, your Honor." When the court asked him if he had any other questions for counsel, defendant indicated he had "[j]ust one little question." After an off-the-record discussion with counsel, the court asked defendant if his question had been answered. Defendant replied, "Yes, your Honor. Thank you." He told the court that he understood he was agreeing to a sentence of 24 years.
Defendant was sentenced, consistent with his stipulation, to an aggregate term of 24 years in state prison. Defendant was ordered to pay various fines and fees and was awarded 92 days of custody credit (80 actual days and 12 conduct days). The trial court reserved jurisdiction on the issue of direct victim restitution. Defendant appeals with a certificate of probable cause.
Defendant filed a supplemental brief, asking us to permit him to withdraw his plea based on ineffective assistance of counsel. In making this claim, the burden is on defendant to establish both that counsel's representation fell below prevailing professional norms and that, in the absence of counsel's failings, a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].) Defendant's challenge to counsel's representation is vague and fails to affirmatively establish how counsel's representation fell below prevailing professional norms or how a more favorable result was reasonably probable.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: HULL , Acting P. J. BUTZ , J.
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