People v. Talibdeen CA2/5 ( 2014 )

Filed 6/11/14 P. v. Talibdeen CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B247960
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA122982)
v.
NAASIR ALI TALIBDEEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick
Connolly, Judge. Affirmed.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Naasir Ali Talibdeen pled no contest to one count of first degree
commercial burglary in violation of Penal Code1 section 459 and admitted he had
suffered a prior serious or violent felony conviction within the meaning of sections 667
and 1170.12. Pursuant to a plea agreement, two other burglary counts were dismissed,
and appellant was sentenced to six years in state prison. The court awarded appellant 670
days of presentence custody credit.
Appellant appeals from the judgment of conviction. We affirm the judgment of
conviction.
Facts and Procedural Background
Appellant was charged with three counts of second degree burglary of a
commercial building, one committed on April 10, 2012 and the other two on April 20,
2012. The April 10 burglary was of a Baskin Robbins store. Edible Arrangements and
Goodwill Industries were burglarized on April 20. In all three cases, the burglar threw a
rock through a glass window or door, opened the business’s cash register and took any
money inside.2 All three burglaries were captured by surveillance cameras.
Appellant represented himself in the trial court. He made numerous motions,
including statutory and non-statutory motions to set aside the information, a motion to
recuse Judge Cheroske, a motion to suppress evidence uncovered in a search of his
residence and motions to exclude evidence. Appellant entered into a plea agreement on
the date set for trial. He pled no contest to the count 1 burglary charge involving Edible
Arrangements.
1
All further statutory references are to the Penal Code unless otherwise specified.
2
There was no money in the Goodwill cash register.
2
Discussion
Appellant obtained a certificate of probable cause pursuant to section 1237.5, and
filed a timely notice of appeal, and we appointed counsel to represent him on appeal.
Appellant’s counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d
436, and requested this court to independently review the record on appeal to determine
whether any arguable issues exist.
On December 6, 2013, we advised appellant he had 30 days in which to personally
submit any contentions or issues which he wished us to consider. Appellant filed a
supplemental brief making three claims of error.
1. Recusal motion
Appellant contends that his motion to recuse or disqualify Judge Cheroske was
improperly denied. “The determination of the question of disqualification of a judge is
not an appealable order and may be reviewed only by a writ of mandate. . . .” (Code Civ.
Proc § 170.3, subd. (d); see People v. Webb (1993) 6 Cal.4th 494, 522-523 [writ is
exclusive means of challenge; issue may not be relitigated on appeal].)
A certificate of probable cause to appeal a judgment following a guilty plea cannot
render reviewable a claim that is not otherwise cognizable on appeal. (People v. Collins
(2004) 115 Cal.App.4th 137.) Appellant’s claim is not cognizable on appeal.3
2. Warrantless arrest
Appellant contends he was arrested inside his home without a warrant and so the
arrest was invalid under People v. Ramey (1976) 16 Cal.3d 263. The court found that
even assuming appellant was arrested inside his residence, the deputies who came to the
residence had a good faith belief that appellant was on parole, and so could make a legal
entry into appellant’s residence. Thus, an arrest warrant was not required.
3
To the extent appellant contends that Judge Cheroske made a statement after the
denial of the recusal motion which also constituted judicial misconduct and provided an
additional reason for recusal, we are unable to find this statement in the record.
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The trial court was correct. (See People v. McCarter (1981) 117 Cal.App.3d 894,
908 [since police had judicial authorization to enter suspect’s home via a validly issued
and executed search warrant, there was no Ramey violation as to suspect]; People v.
Evans (1980) 108 Cal.App.3d 193, 196 [“[I]t is the intrusion into, rather than the arrest
in, the dwelling which offends constitutional standards under Ramey.”].) The trial court
was also correct in pointing out that even if appellant’s arrest was illegal, appellant raised
this issue in a motion to suppress evidence and there was nothing arising from the arrest
for the court to suppress.
3. Ineffective assistance of appellate counsel
Appellant contends he received ineffective assistance of counsel on appeal. He
specifically contends that mistakes in the opening brief prepared by counsel indicate that
she confused his case with two other cases.
An indigent defendant has the right to effective assistance of counsel on appeal.
(In re Spears (1984) 157 Cal.App.3d 1203, 1210.) Some of the specific duties which
appointed appellate counsel must fulfill to meet his or her obligations as a competent
advocate include “‘the duty to prepare a legal brief containing citations to the [appellate
record] and appropriate authority, and setting forth all arguable issues, and the further
duty not to argue the case against his client.’ [Citations.]” (People v. Barton (1978) 21
Cal.3d 513, 519, footnote omitted.)
Appellant points to several locations in the opening brief where his appellate
counsel made factual errors. Appellant is correct that the cover of the opening brief states
that Moore is counsel for “Appellant Davis.” He is also correct that counsel’s declaration
states in the first paragraph that her client is “Madeleine Maria Alvelais” and in the
second paragraph that she has written to her client Talibdeen at “her” address at Wasco
State Prison. Appellant is currently housed at the Sierra Conservation Center. These
mistakes appear to arise from the use of a template to prepare the opening brief and show
a failure to thoroughly proof-read the brief.
4
More troubling is counsel’s statement that appellant was awarded 402 days of
custody credit, with a citation to page 296 of the clerk’s transcript. The minute order at
that page states: “Nunc pro tunc order prepared on March 26, 2013, by Gabriela Ruelas
by deleting the following language: Defendant given credit for 402 days in custody 335
days actual custody and 67 days good time/work time” The order continues on page 297
and states “to reflect the following language: Defendant given credit for 670 days in
custody, 335 days actual and 335 for good time/work time.” This certainly indicates a
failure to read the appellate record carefully. Any harm from counsel’s carelessness
about credits has been cured by the trial court’s “re-issuance” of appellant’s
“commitment papers” with the correct custody credits and by this Court’s inclusion of the
corrected custody credits in this opinion.
Appellant suggests that since appellate counsel was confused and careless, and
ultimately failed to raise any arguable issues, counsel may not have performed an
adequate review of the record.
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 filed a Wende brief is insufficient, by itself, to show appellate counsel
has been ineffective.
We have undertaken an examination of the entire record pursuant to Wende, and
are satisfied that no arguable issues exist. Accordingly, appellant has failed to meet his
burden of proof on the issue of ineffective assistance of appellate counsel. (Smith v.
Robbins (2000) 528 U.S. 259, 278–284; People v. Wende, supra, 25 Cal.3d at p. 443.)
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Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.*
We concur:
TURNER, P. J.
MOSK, J.
*
Retired 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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