People v. Riskas CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD263956, SCS282449
- Trial judge
- Michael S. Groch
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion
Analysis
Riskas pleaded guilty in two San Diego cases to evading an officer with reckless driving and grand theft, admitted three prison priors, stipulated to a six-year term, waived appeal, and was sentenced to six years; the trial court denied his request for a certificate of probable cause. On appeal, appointed counsel filed a Wende brief, Riskas filed a supplemental brief relying on matters outside the record, and the Court of Appeal conducted an independent record review, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and stipulated six-year sentence entered on guilty pleas (independent Wende/Anders review of the entire record)“The judgment is affirmed.” | unclear | correct | agree with court Under Wende and Anders the court independently reviewed the record and found no reasonably arguable issue. Because Riskas stipulated to the sentence, waived appeal, and lacked a certificate of probable cause, Panizzon bars any challenge to the plea or the stipulated sentence, leaving nothing cognizable on appeal. The opinion's conclusion follows from these authorities. |
Denial of request for certificate of probable cause under Penal Code section 1237.5“Whether the court erred in denying a certificate of probable cause.” | unclear | not reached | agree with court Counsel flagged the denial as a possible issue, but the court did not analyze it beyond noting that without a certificate Riskas cannot attack the plea or stipulated sentence. The record as described (a plea with an admitted value exceeding $950, a stipulated sentence, and an appeal waiver) gives no indication the denial was erroneous, and ordinarily the remedy for an improper denial is a writ petition rather than this appeal. The court's handling is defensible though cursory. |
Riskas's supplemental claims of ineffective assistance of trial counsel and that the theft loss did not exceed $950, supported by documents outside the appellate record“There is nothing in this record which would allow us to address his” | unclear | not reached | agree with court Appellate review is confined to the record; Riskas's documents were of undetermined source and not in the record, and he had admitted the value element at the plea. Mendoza Tello correctly directs that ineffective assistance claims depending on extra-record facts be raised by habeas corpus in the superior court. The court properly declined to reach these contentions on direct appeal. |
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 issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds no meritorious issues must file a brief referring to anything in the record that might arguably support the appeal.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance claims that depend on facts outside the appellate record are more appropriately raised by petition for writ of habeas corpus.
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — A defendant who has pleaded guilty and stipulated to a sentence may not challenge the plea or the negotiated sentence on appeal without a certificate of probable cause.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, addresses the supplemental brief as required, and correctly invokes Panizzon and Mendoza Tello to explain why the plea, stipulated sentence, and extra-record claims cannot be reviewed on this appeal. It does not separately analyze the flagged denial of the certificate of probable cause, but on this record nothing suggests that omission affected the result.
Opinion
Filed 6/23/16 P. v. Riskas 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, D069328
Plaintiff and Respondent, v. (Super. Ct. No. SCD263956, SCS282449) DOUGLAS L. RISKAS, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael S.
Groch, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Douglas L. Riskas entered a guilty plea to one count of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) and one count of grand theft in excess of $950 (Pen. Code,1 § 487, subd. (a)) in case number SCD263956. As part of the plea 1 All further statutory references are to the Penal Code unless otherwise specified. bargain, Riskas admitted three prison priors (§ 667.5, subd. (b)(5)), stipulated to a six- year sentence, and waived his right to appeal.
In case number SCS282449, Riskas pleaded guilty to grand theft in excess of $950 (§ 487, subd. (a)). Riskas admitted three prison priors, stipulated to a concurrent six-year term, and waived his right to appeal.
The court sentenced Riskas to a six-year term as stipulated in the plea agreements.
Riskas filed a timely notice of appeal. The court denied his request for a certificate of probable cause. (§ 1237.5.)
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able 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 Riskas the opportunity to file his own brief on appeal.
Riskas has responded with a supplemental brief which raises some issues based upon matters outside the record on this appeal. We will discuss his arguments below.
DISCUSSION
As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436. Although counsel has not identified any reasonably arguable issues for reversal, counsel has complied with the requirements of Anders v. California (1967) 386 U.S. 738 (Anders) and has identified the following possible, but not reasonably arguable issues for our consideration:
2 1. Whether there was sufficient evidence in case number SCS282449, that Riskas committed thefts in excess of $950.2 2. Whether the court erred in denying a certificate of probable cause.
In his supplemental letter brief, Riskas contends his trial counsel was ineffective, that he wishes to discharge his appellate counsel, and that the amount of the theft in case SCS282449 did not actually exceed $950, notwithstanding his admission at the time of the plea that the value of the items taken did exceed that amount.
In addition, Riskas has attached some documents purporting to show the amount of loss incurred by the store in case SCS282449 was below $950. We cannot determine the source of the documents, which are not contained in the record on appeal. It appears that other than expressing his dislike for his appellate counsel, Riskas is relying on matters outside the record. He expresses his intention to file a petition for writ of habeas corpus at some point. There is nothing in this record which would allow us to address his issues. Riskas's remedy, if any, is by way of a petition for writ of habeas corpus filed in the superior 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.3d 436 and Anders, supra, 386 U.S. 738. We have not discovered any reasonably arguable issue for reversal on appeal. Competent counsel has represented Riskas on this appeal.
DISPOSITION
The judgment is affirmed.
2 Since Riskas did not obtain a certificate of probable cause he cannot challenge his plea, or his stipulated sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 76-79.) 3 HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4
Cites, in this corpus
- People v. Mendoza Tello S055184 · 1997-04-17
- People v. Panizzon S046141 · 1996-04-18
- People v. Wende Crim. 20851 · 1979-10-12