People v. Fernandez CA2/7 ( 2014 )

Filed 1/21/14 P. v. Fernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
orde red published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B249915
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA127010)
v.
DERICK ESTEVAN FERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Peter P.
Espinoza, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
______________________
FACTUAL AND PROCEDURAL BACKGROUND
Police arrested Derick Estevan1 Fernandez after a homeowner found him in the
garage on April 10, 2012 holding a package of paper towels belonging to the homeowner.
On January 28, 2013 Fernandez contacted the mother of his two year-old son in violation
of a restraining order and punched her in the head following an argument.
Represented by counsel, Fernandez pleaded not guilty to a consolidated
information charging him with residential burglary (Pen. Code, § 459),2 inflicting
corporal injury on the mother of his child (§ 273.5, subd. (a)), and disobeying a
restraining order (§ 166, subd. (a)(4)). The information specially alleged as to the
burglary count that Fernandez had suffered a prior serious or violent felony conviction
within the meaning of section 667, subdivision (a)(1), and the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12) and had served three separate prison terms for felonies
(§ 667.5, subd. (b)). Fernandez subsequently made a motion pursuant to People v.
Marsden (1970) 2 Cal. 3d 118 asking the court to relieve his appointed counsel, which the
trial court denied.
In a negotiated agreement, Fernandez pleaded no contest, orally and in writing, to
committing residential burglary and inflicting corporal injury on the mother of his son,
and admitted the prior conviction allegations, in exchange for an 11-year state prison
sentence. Prior to entering his plea, Fernandez was advised of constitutional rights and
the consequences of his plea. Fernandez waived his constitutional rights and
acknowledged that he understood the consequences of his plea. Counsel for Fernandez
stipulated to a factual basis for the plea. The trial court found that Fernandez had
knowingly, voluntarily, and intelligently waived his constitutional rights, and entered his
no contest plea.
1 The record also shows Fernandez’s middle name as “Esteban”.
2 All further statutory references are to the Penal Code.
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At the sentencing hearing, in accordance with the plea agreement, the court
imposed the 11-year sentence, consisting of a term of four years (the two-year lower term
doubled under the Three Strikes law) for residential burglary, plus two years (one-third
the middle term of three years doubled under the Three Strikes law) for inflicting
corporal injury on the mother of his child, plus five years for the prior serious felony
conviction pursuant to section 667, subdivision (a)(1). The trial court dismissed the
misdemeanor charge of disobeying a protective order (count 3) and the prior prison term
allegations as part of the negotiated plea. The court awarded Fernandez presentence
custody credit of 182 days (91 actual days and 91 days of conduct credit). The court
ordered Fernandez to pay a $40 court security fee and a $30 criminal conviction
assessment on each count and a $280 restitution fine. The court imposed and suspended
a parole revocation fine pursuant to section 1202.45. The court also ordered Fernandez
not to harass, molest, annoy, or communicate with the mother of his child, and to stay
away from her residence and place of employment, and had Fernandez served with the
criminal protective order before he left the courtroom.
In his notice of appeal, Fernandez checked the boxes indicating his appeal was
“based on the sentence or other matters occurring after the plea” and challenged “the
validity of the plea or admission.” Handwritten notes at the top of the two pages of the
notice of appeal, however, read, “I’m not challenging the plea. I am asking for less time.
I am challenging the sentencing. . . . Modification of time.” The trial court denied
Fernandez’s request for a certificate of probable cause, in which he asserted his trial
counsel provided ineffective assistance.
DISCUSSION
We appointed counsel to represent Fernandez on appeal. After an examination of
the record, counsel filed an opening brief raising no issues. On October 17, 2013 we
advised Fernandez that he had 30 days in which to personally submit any contentions or
issues he wished us to consider. We have received no response.
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The record does not support Fernandez’s claim in his notice of appeal that his
counsel provided ineffective assistance at any time during the proceedings in the trial
court. (See Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S. Ct. 2052, 80
L. Ed. 2d 674].) To the extent Fernandez is contending that his trial counsel was
uninterested, uncommunicative, or allied with the prosecution, we cannot address these
issues because they depend on matters outside the record on appeal and are more
appropriately raised on habeas corpus. (People v. Gray (2005) 37 Cal. 4th 168, 211
[rejecting claim of ineffective assistance of counsel because it “is more appropriately
raised in a petition for writ of habeas corpus”]; People v. Mendoza Tello (1997) 15
Cal. 4th 264, 266-267 [same].) With respect to other potential sentencing or post-plea
issues that do not in substance challenge the validity of the plea, we have examined the
record and are satisfied that Fernandez’s attorney on appeal has fully complied with the
responsibilities of counsel and there are no arguable issues. (See Smith v. Robbins (2000)
528 U.S. 259, 277-284 [120 S. Ct. 746, 145 L. Ed. 2d 756]; People v. Kelly (2006) 40
Cal. 4th 106, 118-119; People v. Wende (1979) 25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
SEGAL, J.*
We concur:
WOODS, Acting P. J. ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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