People v. Moore CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS267863
- Trial judge
- Ana Espana
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Gilbert Nares, McINTYRE
Analysis
The trial court denied Moore's motion to strike prior convictions and probation, sentencing him to 13 years consecutive with 25 years to life after a guilty plea. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on appeal and directing that claims based on facts outside the record be raised via habeas corpus.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to strike serious/violent felony priors and denial of probation“The trial court denied Moore's motion to strike the serious/violent felony priors and denied probation.” | unclear | not reached | unsure The appellate court did not review the merits of the trial court's sentencing decisions because the Wende review found no reasonably arguable issues, and the defendant's supplemental brief relied on facts outside the record. |
Validity of guilty plea and understanding of consequences“Our review of the change of plea process demonstrates the trial court conducted a very thorough process of reviewing the implications of the change of plea and that Moore understood the consequences of his decision.” | de novo | correct | agree with court The court reviewed the record of the change of plea hearing and found the process thorough and the defendant's understanding clear, thereby rejecting the claim of ineffective assistance regarding the plea process. |
Procedural remedy for claims based on facts outside the record“Since all of Moore's contentions in his supplemental brief are based on alleged facts outside the record on appeal, Moore's remedies, if any, must be found by way of a petition for writ of habeas corpus filed with the trial court.” | de novo | correct | agree with court The court correctly identified that appellate review is limited to the record on appeal and that new factual allegations require a habeas corpus petition under established California law. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must file a brief identifying any reasonably arguable issues, and the court must independently review the record if none are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may withdraw if the appeal is wholly frivolous, provided they file a brief identifying any arguable issues and the court reviews the record.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Claims based on facts outside the appellate record must be raised in a petition for writ of habeas corpus.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record and correctly directs the defendant to habeas corpus for claims relying on extrinsic facts. However, it is a summary disposition that does not engage with the specific legal arguments regarding the prosecutor's comments or the effectiveness of counsel in detail, relying instead on the absence of reasonably arguable issues.
How this analysis was made · dispute it
unusual disposition unusual dispositionMoore pleaded guilty to a lewd act on a 14- or 15-year-old (Pen. Code § 288, subd. (c)(1)) with admissions of a great bodily injury enhancement, two serious felony priors, and two strike priors; the trial court denied his motion to strike the strike priors, denied probation, and imposed 13 years plus 25 years to life. On appeal, counsel filed a Wende brief, Moore filed a supplemental brief alleging ineffective assistance based on matters outside the record, and the Court of Appeal independently reviewed the record, found no arguable issue, directed Moore to habeas corpus for his extra-record claims, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of the guilty plea and adequacy of the change-of-plea advisements (including whether Moore understood he faced a life term and whether defense counsel should have corrected the prosecutor's comments on the bases for a 25-to-life term)“the trial court conducted a very thorough process of reviewing the implications of the change of plea and that Moore understood the consequences of his decision.” | unclear | correct | agree with court The court performed the independent record review required by Wende and Anders and found the plea colloquy thorough. Because Moore obtained no certificate of probable cause under § 1237.5, challenges to the validity of the plea were in any event not cognizable, which independently supports affirmance even though the opinion notes the missing certificate without spelling out its consequence. The opinion's description of the record, though brief, supports its conclusion. |
Denial of the motion to strike the serious/violent felony (strike) priors and denial of probation, resulting in a sentence of 13 years consecutive to 25 years to life“The trial court denied Moore's motion to strike the serious/violent felony priors and denied probation.” | unclear | correct | unsure Sentencing rulings are reviewable without a certificate of probable cause, and the court's statement that it reviewed the entire record under Wende encompasses them. However, the opinion contains no discussion of the Romero factors or the reasons for denying probation, so there is nothing in the opinion from which to independently confirm the ruling was within the trial court's discretion. |
Ineffective assistance of counsel and misleading advice claims raised in Moore's supplemental brief“Moore's remedies, if any, must be found by way of a petition for writ of habeas corpus filed with the trial court.” | unclear | not reached | agree with court The court correctly applied People v. Mendoza Tello: ineffective assistance claims depending on facts outside the appellate record cannot be resolved on direct appeal and must be pursued by habeas corpus. The court also complied with its obligation to address the supplemental brief's contentions in a written opinion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel unable to find arguable issues should identify anything in the record that might arguably support the appeal to assist the court's review.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance of counsel claims resting on matters outside the appellate record are more appropriately raised by petition for writ of habeas corpus than on direct appeal.
- missed: People v. Mendez (1999) 19 Cal.4th 1084 — Absent a certificate of probable cause under Penal Code section 1237.5, an appellate court may not reach claims attacking the validity of a guilty plea; the opinion notes the missing certificate but never explains that this bars Moore's plea-validity contentions.
The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, addressed the supplemental brief as required, and correctly routed extra-record ineffective assistance claims to habeas corpus, reaching a defensible result. It nonetheless skipped explaining the effect of the missing certificate of probable cause on plea-validity claims, offered no analysis of the Anders issue counsel flagged or of the Romero and probation denials, and miscites Wende as 25 Cal.4th 436 in its conclusion.
Opinion
Filed 3/17/16 P. v. Moore CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068240
Plaintiff and Respondent, v. (Super. Ct. No. SCS267863)
GREGORY MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Ana España, Judge. Affirmed.
Robert E. Boyce for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Gregory Moore pleaded guilty to one count of a lewd act on a child age 14 or 15 years. (Pen. Code,1 § 288, subd. (c)(1).) Moore admitted he inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) Moore also admitted two serious felony prior 1 All further statutory references are to the Penal Code unless otherwise specified. convictions (§ 667, subd. (a)(1)) and two serious/violent felony prior convictions (strike priors; § 667, subds. (b)-(i)).
The trial court denied Moore's motion to strike the serious/violent felony priors and denied probation. Moore was sentenced to a determinate term of 13 years, consecutive with an indeterminate term of 25 years to life.
Moore filed a timely notice of appeal, but did not obtain a certificate of probable cause from the trial court. (§ 1237.5.)
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he is unable to identify any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Moore the opportunity to file his own brief on appeal and he has responded by filing a supplemental brief. We will address the supplemental brief below.
STATEMENT OF FACTS
Moore admitted he had sexual intercourse with a child of 14 to 15 years of age while he was at least 10 years older than the child. He also admitted he impregnated the child and that she gave birth.
DISCUSSION
As we have noted appellate counsel has not identified any reasonably arguable issue for reversal on appeal. Counsel has asked the court to review the record for error and has identified one possible, but not reasonably arguable issue to assist the court in its review as required by Anders v. California (1967) 386 U.S. 738 (Anders):
2 Whether the prosecutor's incorrect analysis comments at the change of plea hearing about two of the possible bases for application of a 25-year-to-life term should have been challenged by defense counsel. Thus the question is whether counsel failed to provide effective assistance of counsel.
In his supplemental brief, Moore raises a number of issues based on facts outside the record on appeal. In essence he argues his counsel was ineffective and misled him.
He contends he did not understand the plea process and did not know he was subject to a life term of imprisonment. Our review of the change of plea process demonstrates the trial court conducted a very thorough process of reviewing the implications of the change of plea and that Moore understood the consequences of his decision.
Since all of Moore's contentions in his supplemental brief are based on alleged facts outside the record on appeal, Moore's remedies, if any, must be found by way of a petition for writ of habeas corpus filed with the trial court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.4th 436 and Anders, supra, 386 U.S.738, and have not identified any reasonably arguable issue for reversal on appeal. Competent counsel has represented Moore on this appeal.
3 DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
Cites, in this corpus
- McCall v. PacifiCare of California, Inc. S082236 · 2001-05-03
- People v. Mendoza Tello S055184 · 1997-04-17
- People v. Wende Crim. 20851 · 1979-10-12